Australian media law [Fifth edition.] 9780455234403, 045523440X

Table of contents :
Table of Contents
Table of Cases
Table of Statutes
1
Introduction
2
Free Speech
3
Defamation
4
Reporting Parliament and Elections
5
Media and Open Justice
6
Contempt of Court
7
Confidentiality and Sources of Information
8
Privacy
9
Offensive Publications
10
Media and National Security
11
Negligence
12
Copyright
13
Advertising
14
Regulation of the Media
15
Media Ownership and Control
Index

Citation preview

AUSTRALIAN MEDIA LAW

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

AUSTRALIAN MEDIA LAW DES BUTLER LLB with First Class Honours (QIT), PhD (QUT) Professor of Law Faculty of Law, Queensland University of Technology

SHARON RODRICK BA (Melb), LLB (Hons) (Melb), LLM (Melb), PhD (Monash) Senior Lecturer of Law Faculty of Law, Monash University

Free Speech chapter

LAWRENCE MCNAMARA B Ec (Hons) (Monash), LLB (Hons), PhD (Sydney) Deputy Director and Senior Research Fellow, Bingham Centre for the Rule of Law Bingham Centre for the Rule of Law

Copyright chapter

JENNIFER IRELAND BA LLB (Syd) LLM (UTS) Grad Dip Leg Prac Lecturer, School of Law University of Western Sydney

FIFTH EDITION

LAWBOOK CO.2015

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition ................................................... Second edition .............................................. Third edition .................................................. Fourth edition ...............................................

1999 2004 2007 2012

National Library of Australia Cataloguing-in-Publication entry Butler, D. A. (Des A.) Australian media law / Des Butler, Sharon Rodrick, Jennifer Ireland, Lawrence McNamara. 5th ed. Includes index. ISBN 9780455234403 (pbk.) Mass media – Law and legislation – Australia. Telecommunications – Law and legislation – Australia. Rodrick, Sharon, author. Ireland, Jenn, author. McNamara, Lawrence, author. 343.94099 © 2015 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Zoe Haynes Product Developer: Lucas Frederick Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

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PREFACE Events since the last edition have continued to bring free speech, including its exercise by the media, sharply into focus. In Australia the Abbott Federal Government has been involved in issues concerning free speech on a number of fronts. In the wake of the Federal Court finding that two articles written by the conservative commentator Andrew Bolt amounted to racial vilification, the Federal Attorney-General Senator Brandis defended the “right” of Australians “to be bigots” and the government moved to enact its pre-election promise to amend the Racial Discrimination Act. In the Senator’s view “in a free country people … have rights to say things that other people find offensive or insulting or bigoted.” However, in the face of opposition from the community these plans were later shelved. At the same time the same government has enacted a further raft of anti-terrorism laws that have had the effect of placing further restrictions on reporting by the media. Other developments have including further reports by Law Reform Commissions at both a national and state level that have recommended the enactment of a statutory right to protect personal privacy. Despite a growing personal privacy jurisprudence in countries such as the United Kingdom and New Zealand there remains no sign of any Australian government acting upon such recommendations. The groundswell of public concern in the wake of the News of the World scandal in England, which involved a newspaper committing flagrant invasions of privacy by hacking the telephone voicemail accounts; included a murdered schoolgirl, relatives of deceased British soldiers and victims of the 7/7 London bombings, and which included as its sequela the closure of the newspaper, conviction of some of the participants and an inquiry into the operation of the media, seems to have subsided in this country. Among the many other developments examined in this edition, several are particularly noteworthy. In the sphere of defamation laws, there has been further exploration of the contextual truth defence and the liability of search engines and internet service providers. The High Court has also now resolved the position concerning internet service providers in relation to copyright infringement via their services, while there has been a landmark decision concerning internet service providers disclosing the names of those who engage in such infringements. In the area of confidentiality, more jurisdictions have enacted shield laws for journalists’ sources based on a presumption of nondisclosure. New regimes for suppression orders have also been enacted, while there have been developments regarding whether journalists can use electronic devices to record and disseminate court proceedings. We are grateful to Lucas Frederick of Thomson Reuters for his support and encouragement during the work and Zoe Haynes for her skills in the editorial phase. Des Butler would also like to thank Ivan Ingram and Patricia Escalon and Lawrence McNamara would like to thank Ruaraidgh Fitzpatrick for their research assistance.

v

Australian Media Law

For the record, as with previous editions, Des Butler was responsible for Chapters 1, 3, 7 (excluding Journalists’ Sources), 8-11 and 13, Sharon Rodrick was responsible for Chapters 4-6, 7 (Journalists’ Sources) and 14-15 and Lawrence McNamara contributed Chapter 2. For this edition Jennifer Ireland takes over carriage of the copyright chapter, Chapter 12. We welcome her on board. We thank Anne Fitzgerald for her copyright chapters in previous editions. We have endeavoured to state the law as at 1 March 2015, although in a number of instances we have been able to include material of a later date.

PROFESSOR DES BUTLER Brisbane SHARON RODRICK Melbourne July 2015

vi

Table of Contents Preface ......................................................................................................................................... v Table of Cases ........................................................................................................................... ix Table of Statutes ......................................................................................................................... li Chapter 1. Introduction ............................................................................................................. 1 Chapter 2. Free Speech .......................................................................................................... 5 Chapter 3. Defamation ........................................................................................................... 31 Chapter 4. Reporting Parliament and Elections .................................................................. 155 Chapter 5. Media and Open Justice ................................................................................... 233 Chapter 6. Contempt of Court ............................................................................................. 353 Chapter 7. Confidentiality and Sources of Information ....................................................... 461 Chapter 8. Privacy ................................................................................................................ 523 Chapter 9. Offensive Publications ....................................................................................... 617 Chapter 10. Media and National Security ........................................................................... 677 Chapter 11. Negligence ........................................................................................................ 703 Chapter 12. Copyright .......................................................................................................... 729 Chapter 13. Advertising ........................................................................................................ 755 Chapter 14. Regulation of the Media .................................................................................. 797 Chapter 15. Media Ownership and Control ........................................................................ 949 Index ....................................................................................................................................... 999

vii

Table of Cases A A v B plc [2003] QB 195; [2002] 2 All ER 545 ................................... 7.60, 8.520, 8.530, 8.940, 8.1040 A v British Broadcasting Corporation (Scotland) [2014] UKSC 25 ............. 5.20, 5.40, 5.50, 5.90, 5.280 A v Hayden (No 2) (1984) 156 CLR 532 ............................................................................... 5.120, 7.330 A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 ............................................. 4.100, 4.180 A-One Accessory Imports v Off Road Imports Pty Ltd (1996) 65 FCR 478 .................................... 12.70 A Former Officer of the Australian Security Intelligence Organisation, Re [1987] VR 875 ............. 5.120 AAA v Associated Newspapers Ltd [2012] EWHC 2103 ..................................................... 8.560, 8.1040 AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 ............................................................... 8.560 ABC v D1; Ex parte The Herald and Weekly Times Ltd [2007] VSC 480 .................... 5.60, 5.90, 5.120 ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 ................................................................ 3.970 ABC-1 v Ring [2014] VSC 5 ............................................................................................................... 5.500 ACCC v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 ................................ 3.560 ACCC v Apple Pty Ltd [2012] FCA 646 ........................................................................................... 13.350 ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 ...................................... 3.1450, 13.420 ACCC v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 ........................................ 13.70, 13.120 ACCC v Goldy Motors Pty Ltd (2001) ATPR 41-801 ...................................................................... 13.190 ACCC v Jewellery Group Pty Ltd (No 2) (2013) ATPR ¶42-440 .................................................... 13.370 ACCC v Lovelock Luke Pty Ltd (1997) ATPR 41-594 ....................................................... 13.210, 13.220 ACCC v Marksun Australia Pty Ltd (2011) ATPR 42-363 ............................................................... 13.230 ACCC v Metcash Trading Ltd (2011) 284 ALR 662 ........................................................................ 15.400 ACCC v On Clinic Aust Pty Ltd (1996) 35 IPR 635 ....................................................................... 13.370 ACCC v Signature Security Group Pty Ltd [2003] FCA 3 .............................................................. 13.370 ACCC v Singtel Optus Pty Ltd (No 4) [2011] FCA 761 .................................................................. 13.350 ACCC v TPG Internet Pty Ltd (2013) 304 ALR 186 ..................................... 13.60, 13.80, 13.90, 13.350 ACCC v Target Australia (2001) ATPR 41-840 .................................................................................. 13.70 ACCC v Telstra Corporation Ltd (2000) 96 FCR 317 ....................................................................... 5.730 ACCC v Telstra Corporation Ltd (2004) 208 ALR 459 .................................................................... 13.190 ACCC v Unilever Australia Ltd (1998) ATPR 41-607 ......................................................... 13.210, 13.220 AD v Morrison [2013] NSWSC 625 .................................................................................................... 5.440 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612; [2009] NSWSC 863 ................................................................................................................. 4.80 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1290 ...................................................................................................................................... 5.60, 5.130 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 ........................................................................................................... 3.1460, 7.230, 7.240, 7.250 ANN v ABC & XYZ [2006] VSC 348 .................................................................................................. 5.120 ANZ Banking Group Ltd v Richard Ellis (Victoria) Pty Ltd (unreported, Vic Supreme Court, 31 Aug 1993) ........................................................................................................................ 6.80 APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 ...... 2.90, 3.990, 6.780 ASIC v Sigalla (No 4) [2011] NSWSC 62 ............................................................................................ 6.20 AX v Stern [2008] VSC 400 ............................................................................................................... 5.120 AZ v The Age (No 1) [2013] VSC 335 ................................................................................... 11.20, 11.30 Aarons v Moloney [2005] NSWSC 795 .............................................................................................. 5.780 Abernethy v Hutchinson (1824) 3 LJ Ch 209 .................................................................................... 7.240 Abkco Music Inc v Harrisongs Ltd (1983) 722 F 2d 988 ................................................................ 12.280 Abrams v United States 260 US 616 ......................................................................................... 2.50, 2.80 Action on Smoking and Health Ltd v Australian Broadcasting Tribunal (1993) 27 ALD 709 ............................................................................................................................................... 13.470 Adam v Fisher (1914) 30 TLR 288 .................................................................................................... 7.580 ix

Australian Media Law Adam v Ward [1917] AC 309 ............................................................................. 3.860, 3.880, 3.960, 4.40 Addis v Crocker [1961] 1 QB 11 ........................................................................................................ 3.740 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 ................................................................. 11.20 Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 ........................ 3.1420, 13.410 Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 ........................... 3.700 Advertiser Newspapers Ltd v Bunting [2000] SASC 458 .................................................................. 5.470 Advertiser Newspapers Ltd v V [2000] SASC 366 ............................................................................ 5.470 Advertiser Newspapers Pty Ltd v B, RD [2008] SASC 362 ............................................................. 5.470 Advertiser Newspapers Pty Ltd v SA Police [2006] SASC 36 .......................................................... 5.470 Aegean Macedonian Association of Aust v Karagiannakis [1999] NSWADT 130 ................ 9.130, 9.180 Age Co Ltd v Beran [2005] NSWCA 289 .......................................................................................... 3.560 Age Co Ltd v Elliott (2006) 14 VR 375 .................................................................................. 3.20, 3.1360 Age Company Ltd, The v Liu [2013] HCATrans 205 ......................................................................... 7.620 Age Company Ltd, The v Liu [2013] NSWCA 26 ................................ 7.540, 7.570, 7.600, 7.620, 7.630 Age Company Ltd, The v Magistrates’ Court of Victoria [2004] VSC 10 ......................................... 5.170 Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89 .............................. 9.220 Ahnee v Director of Public Prosecutions [1999] 2 AC 294 ..... 6.100, 6.810, 6.820, 6.840, 6.890, 6.930, 6.940 Ahnee v Director of Public Prosecutions [1999] 2 AC 322 ............................................................... 6.810 Ainsworth v Hanrahan (1991) 25 NSWLR 155 ........................................................... 5.730, 5.740, 5.770 Akins v Abigroup Ltd (1998) 43 NSWLR 539 ........................................................................ 5.730, 5.780 Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 ....................................................... 3.860 Alcoa of Australia Ltd v Apache Energy Ltd (No 4) [2013] WASC 377 ........................................... 5.760 Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 ................................................... 3.20, 3.1340 Alexander v North Eastern Railway Co (1865) 6 B & S 340 ........................................................... 3.670 Allason v Haines [1995] TLR 438 ...................................................................................................... 4.140 Allbeury v Corruption and Crime Commission [2012] WASCA 84 ...................................................... 6.20 Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 .................. 3.820 Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 .......... 8.170, 8.180, 8.270 Allied Mills Industries Pty Ltd v Trade Practices Commission (1981) 34 ALR 105 ......................... 7.330 Allworth v John Fairfax Group Pty Ltd (unreported, ACT Supreme Court, Higgins J, 25 March 1993) ................................................................................................................................. 3.1160 Alma v Nakir [1966] 2 NSWR 396 .......................................................................................... 8.830, 8.870 Alterskye v Scott [1948] 1 All ER 469 ............................................................................................... 5.730 Amalgamated Television Services Pty Ltd v Foxtel Digital Cable Television Pty Ltd (1996) 136 ALR 319 ...................................................................................................................... 14.50 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 ........ 3.100, 3.120, 3.190, 9.50 Amalgamated Television Services Pty Ltd v Marsden (2001) 122 A Crim R 166 ........................... 7.490 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ......... 3.990, 3.1000, 3.1040, 3.1080 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 ......................... 3.730, 4.80, 4.90, 4.170 Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322 ............... 5.20, 6.820, 6.830, 6.890 Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker (No 3) [2010] VSC 545 ........ 5.730, 5.780 American Booksellers Association v Hudnut 771 F 2d 323 (7th Cir .................................................. 2.80 American Cyanamid Co v Ethicon Ltd [1975] AC 396 ...................................................................... 7.410 An Inquiry under the Company Securities (Insider Dealing) Act 1985, Re [1988] 1 AC 660 ................................................................................................................................................. 7.510 Anchor Mortlock, Murray & Wolley Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 ............. 12.200 Andreae v Selfridge & Co Ltd [1937] 3 All ER 255 ............................................................... 8.810, 8.860 Andrew Dunn and The Morning Bulletin Ltd, Re [1932] St R Qd 1 ................................................... 5.30 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 ........................................................... 3.1340 Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 .............................................. 8.610, 8.1040 Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 ...................................................... 3.710 Anissa Pty Ltd v Parsons [1999] VSC 430 ................................................................... 6.90, 6.820, 6.880 x

Table of Cases Annand & Thompson Pty Ltd v Trade Practices Commission (1979) 40 FLR 165 .......... 13.70, 13.140, 13.370 Annetts v McCann (1990) 170 CLR 596 ............................................................................................. 6.40 Anon 2 v XYZ [2008] VSC 466 ......................................................................... 5.50, 5.120, 5.280, 5.670 Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 .................. 2.90 Application by Chief Commissioner of Police (Vic), Re (2005) 214 ALR 422 ............. 5.40, 5.330, 5.530 Application by Chief Commissioner of Police (Vic) for Leave to Appeal, Re (2004) 9 VR 275 ............................................................................................................................ 5.10, 5.170, 5.330 Application for an Authorization, Re (1984) 14 DLR (4th) 546 ......................................................... 8.320 Application of Cojuangco, Re (1986) 4 NSWLR 513 ........................................................................ 7.610 Application of Cojuangco (No 2) (unreported, NSW Supreme Court, Hunt J, 6 January 1989) ................................................................................................................................... 7.600, 7.610 Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 ..................................................................................................................... 3.190 Argyll v Argyll [1967] 1 Ch 302 ................................................................................................. 7.60, 7.420 Armstrong v Budd (1969) 71 SR (NSW) 386 ......................................................................... 4.230, 4.250 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 ........................................................ 5.80 Ashby v Commonwealth of Australia (No 2) [2012] FCA 766 ............................................... 7.670, 7.680 Ashton v Pratt [2011] NSWSC 1092 ......................................................................................... 5.60, 5.440 Ashworth Hospital Authority v MGN Ltd [2001] 1 All ER 991; [2002] UKHL 29 .............................. 7.660 Ashworth Security Hospital v MGN Ltd [2002] 4 All ER 193 ............................................................ 7.590 Astley v Austrust Ltd (1999) 197 CLR 1 ............................................................................................ 11.40 Atkins v Mays [1974] 2 NZLR 459 ..................................................................................................... 3.740 Attorney-General (NSW) v Bailey [1917] SR (NSW) 170 ................................................................. 6.830 Attorney-General (NSW) v Dean (1990) 20 NSWLR 650 ......... 6.70, 6.140, 6.150, 6.220, 6.460, 6.700, 6.960 Attorney-General (NSW) v John Fairfax & Sons Ltd (1980) 1 NSWLR 362 ........... 6.100, 6.140, 6.220, 6.230, 6.450, 6.660 Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 ........... 6.100, 6.140, 6.220, 6.230, 6.260, 6.280, 6.650, 6.680, 6.690, 6.760 Attorney-General (NSW) v John Fairfax Publications Pty Ltd [1999] NSWSC 318 ............ 6.240, 6.660, 6.750 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 ..... 5.60, 5.100, 5.150, 5.160, 5.310, 5.340, 5.370, 5.380, 7.490 Attorney-General (NSW) v Mirror Newspapers Ltd [1962] SR (NSW) 421 ...................................... 6.610 Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374 ....... 6.40, 6.50, 6.260, 6.560, 6.600, 6.960 Attorney-General (NSW) v Mundey [1972] 2 NSWLR 887 ......... 6.40, 6.70, 6.270, 6.650, 6.820, 6.830, 6.840, 6.890, 6.910, 6.930 Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 ....................... 5.60, 5.170 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1997] NSWSC 487 ....................... 6.140, 6.300 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd [1998] NSWSC 28 ................ 6.70, 6.950, 6.960 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Clarke and Handley JJA, 19 March 1993) ..................................................... 6.960 Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (unreported, NSW Court of Appeal, Priestley, Meagher and Powell JJA, 16 October 1997) ................................................. 6.230 Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 ........ 6.70, 6.150, 6.180, 6.220, 6.230, 6.450, 6.460, 6.610, 6.650, 6.700, 6.750 Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) 5 BR 10 ........ 6.90, 6.140, 6.690, 6.750, 6.950 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994) ........................ 6.610, 6.630, 6.780, 6.950 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994) .......... 6.220, 6.610, 6.630, 6.780 Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994) .................................................. 6.960 xi

Australian Media Law Attorney-General (NSW) v Time Inc Magazine Co Pty Ltd (unreported, NSW Court of Appeal, Kirby P, Handley and Sheller JJA, 7 June 1994) (interlocutory injunction); (unreported, NSW Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 15 September 1994) (full hearing); (unreported, NSWs Court of Appeal, Gleeson CJ, Sheller and Cole JJA, 21 October 1994) ..................................................................................... 6.620 Attorney-General (NSW), Ex parte; Re Truth & Sportsman Ltd [1961] SR (NSW) 484 .................. 6.180 Attorney-General (NSW) v Willesee [1980] 2 NSWLR 143 ....... 6.70, 6.480, 6.660, 6.690, 6.720, 6.960 Attorney-General (NSW) v X (2000) 49 NSWLR 653 ............................................................ 6.730, 6.750 Attorney-General (NZ) and Gow v Lee [2012] NZLR 713 ................................................................ 4.150 Attorney-General (NZ) v Noonan [1956] NZLR 1021 ........................................................................ 6.610 Attorney-General (NZ) v Tonks [1939] NZLR 533 ............................................................................. 6.270 Attorney-General (Qld) v Lovitt [2003] QSC 279 .......................................................... 6.70, 6.820, 6.880 Attorney-General (Qld v Twelfth Night Theatre [1969] Qd R 319 ..................................................... 9.560 Attorney-General (Qld) v WIN Television Qld Pty Ltd [2003] QSC 157 ........ 6.100, 6.150, 6.180, 6.300, 6.760, 6.950, 6.960 Attorney-General (SA) v Huber (1971) 2 SASR 142 ......................................................................... 9.570 Attorney-General (SA) v Kernahan (1981) 28 SASR 313 ................................................................. 5.470 Attorney-General (SA) v Nationwide News Pty Ltd (1986) 43 SASR 374 ....................................... 6.140 Attorney-General (UK) v Associated Newspapers Ltd [2011] EWHC 418 ................. 6.395, 6.610, 6.790 Attorney-General (UK) v British Broadcasting Corporation [1981] AC 303 ................ 6.110, 6.260, 6.950 Attorney-General (UK) v Clough [1963] 1 QB 773 ................................................................ 7.510, 7.530 Attorney-General (UK) v Dallas [2012] EWHC 156 ........................................................................... 6.800 Attorney-General (UK) v Fraill [2011] EWCA Crim 1570 ................................................................... 6.800 Attorney-General (UK) v Guardian Newspapers Ltd (No 2) [1990] 3 WLR 776; 1 AC 109 ............. 5.30, 7.80, 7.100, 7.230, 7.260, 7.360, 7.440, 8.530, 8.960 Attorney-General (UK) v Guardian Newspapers Ltd [1999] EMLR 904 ........................................... 6.230 Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1987) 10 NSWLR 86 ............ 7.50, 7.80, 7.100, 7.260, 7.280, 7.360 Attorney-General (UK) v Heinemann Publishers Aust Pty Ltd (1988) 165 CLR 30 ......................... 7.100 Attorney-General (UK) v Hislop [1991] 1 QB 514; 2 WLR 219 ........................................................ 6.540 Attorney-General (UK) v Jonathan Cape Ltd [1976] QB 752; [1975] 3 WLR 606 ........ 7.60, 7.70, 7.280 Attorney-General (UK) v Leveller Magazine Ltd [1979] AC 440 ..... 5.10, 5.20, 5.50, 5.90, 5.120, 5.160, 5.280, 5.340, 5.360, 5.370, 6.20 Attorney-General (UK) v MGN Ltd [1997] 1 All ER 456 ............................................ 6.230, 6.280, 6.690 Attorney-General (UK) v Mulholland [1963] 2 QB 477 ............................................... 7.510, 7.530, 7.580 Attorney-General (UK) v New Statesman and Nation Publishing Co Ltd [1981] QB 1; [1980] 2 WLR 246 ......................................................................................................................... 5.820 Attorney-General (UK) v News Group Newspapers Ltd [1987] QB 1 .............. 6.90, 6.280, 6.680, 6.690 Attorney-General (UK) v Newspaper Publishing plc [1997] 3 All ER 159; 1 WLR 926 ....... 7.470, 7.480 Attorney-General (UK) v Punch Ltd [2003] 1 AC 1046 ..................................................................... 7.460 Attorney-General (UK) v PYA Quarries [1957] 2 QB 169 ................................................................. 8.840 Attorney-General (UK) v Random House Group Ltd [2009] EWHC 1727 ....................................... 6.950 Attorney-General (UK) v Times Newspapers Ltd [1973] QB 710 ..................................................... 6.210 Attorney-General (UK) v Times Newspapers Ltd [1974] AC 273 ......... 6.90, 6.210, 6.250, 6.260, 6.510, 6.520, 6.540, 6.770, 6.950 Attorney-General (UK) v Times Newspapers Ltd [1992] 1 AC 191 .................................................. 7.450 Attorney-General of Ceylon v de Livera [1963] AC 103 .................................................................... 4.150 Attwood v Chapman [1914] 3 KB 275 ............................................................................................... 3.740 Auld, Ex parte; Re Consolidated Press Ltd [1936] SR (NSW) 596 ................................................. 6.610 Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 ..................................................... 15.380 Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 .................................................................. 3.1070 Austin v Mirror Newspapers Ltd [1986] AC 299 ..................................................... 3.860, 3.1060, 3.1080 Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669 ............................................................................................................................................... 3.1460 Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 ............................................................................................................................................. 6.20 xii

Table of Cases Australian Broadcasting Authority v Star Broadcasting Network Pty Ltd [2004] FCAFC 168 ............................................................................................................................................... 14.810 Australian Broadcasting Commission v Comalco (1986) 12 FCR 510 ........................................... 3.1320 Australian Broadcasting Commission v Parish (1980) 43 FLR 129; 29 ALR 228 ....... 5.60, 5.90, 5.240, 5.250 Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 ............ 3.730, 4.80, 4.100, 4.140, 4.150 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 .... 3.800, 3.860, 3.870, 3.960, 3.1170, 3.1340 Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) ........................................................................... 3.170, 3.210, 3.270, 3.990, 3.1370 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 .... 2.90, 7.60, 8.440, 8.530, 8.650, 8.760, 8.920, 8.940, 8.990, 8.1000, 8.1020, 8.1030, 8.1160 Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 .............. 5.100, 5.290, 5.420, 6.790 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 ....................................... 3.1360 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 ................................................ 3.1370 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 ............................................... 3.160 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ........................................................ 14.30 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106 ........... 2.90, 2.100, 3.970, 4.600 Australian Communications and Media Authority v Radio Station 2UE Sydney Pty Ltd (2009) 178 FCR 199; [2009] FCA 754 ........................................................................... 14.30, 14.840 Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 ............................................................................................................................. 14.740, 14.840 Australian Communist Party v Commonwealth (1951) 83 CLR 1 ....................................................... 2.80 Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257 .............................. 9.280 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 .................................................... 6.20 Australian Football League v The Age Company Ltd (2006) 15 VR 419; [2006] VSC 308 ............. 7.50, 7.60, 7.110, 7.170, 7.180, 7.190, 7.330, 7.360 Australian Football League v The Age Company Ltd (No 2) [2006] VSC 326 .................................. 7.50 Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 47 ALR 497 ............... 13.410 Australian Olympic Committee v Big Fights Inc [1999] FCA 1042 ................................................... 5.650 Australian Securities and Investments Commission v Rich (2001) 51 NSWLR 643; [2001] NSWSC 496 ............................................................................................................ 5.670, 5.675 Australian Securities and Investments Commission v Rich [2002] NSWSC 198 ................. 5.670, 5.675 Axel Springer AG v Germany [2012] EMLR 15 ................................................................................. 8.570

B B v Attorney-General (UK) [1965] 3 All ER 253 .................................................................................. 5.80 B, RD v Channel Seven Adelaide Pty Ltd [2008] SASC 282 ........................................................... 5.470 BK v ADB [2003] VSC 129 ................................................................................................................. 5.120 BUSB v The Queen (2011) 248 FLR 368; 80 NSWLR 170 ...................................... 5.100, 5.240, 5.280 Bacich v Australian Broadcasting Corporation (1992) 29 NSWLR 1 ......................... 7.330, 7.400, 7.410 Badry v Director of Public Prosecutions (Mauritius) [1983] 2 AC 297 ............................................... 6.50 Baigent v Random House Group Ltd [2007] All ER (D) 456 (Mar); (2007) 72 IPR 195 ................. 12.20 Bailey v Hinch [1989] VR 78 .............................................................................................................. 5.570 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 ....................................................... 1.10, 3.540 Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Scully J, 21 July 1995) ............................................................................................................................. 3.990 Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Studdert J, 14 July 1989) ........................................................................................................................... 3.1080 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 ............................. 3.350, 3.360 Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38 ................................................ 5.60, 5.90 Bank of Crete SA v Koskotas (No 2) [1993] 1 All ER 748 ............................................................... 8.940 xiii

Australian Media Law Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 .......................................................................................................... 14.820 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 .......................................................... 11.20 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 ......... 3.320, 3.1060, 3.1070, 3.1080 Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 ............................... 3.1080 Barker v The Queen (1983) 153 CLR 338 ........................................................................................ 8.680 Barnes v Commonwealth (1937) 37 SR (NSW) 511 ....................................................................... 11.240 Barrow v Bolt [2014] VSC 599 .................................................................................. 3.580, 3.860, 3.1280 Barrow v Bolt [2015] VSCA 107 ........................................................................................... 3.860, 3.1280 Barton v Croner Trading Pty Ltd (1984) 3 FCR 95; 54 ALR 541 ....................................... 13.40, 13.230 Barton v Gary Lai (1994) ATPR 40-495 ........................................................................................... 13.210 Barton v Taylor (1886) 11 App Cas 197 ............................................................................................ 4.230 Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 ...................................................... 3.1040 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 .................................................. 3.920, 3.960 Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400 ................................................ 7.580 Bates & Partners Pty Ltd v Law Book Company Ltd (1994) 29 IPR 11 .......................................... 7.230 Bathurst City Council v Saban (1985) 2 NSWLR 704 ...................................................................... 8.710 Bauskis v Adams [2007] NSWCA 293 ............................................................................................... 6.100 Beauharnais v Illinois 343 US 250 (1952) ........................................................................................... 2.80 Beck v Porter (1980) 26 SASR 129 ................................................................................................... 4.620 Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41 ....................................... 2.90 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 ...................................... 3.1370 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 ........................................... 3.1460 Beitzel v Crabb [1992] 2 VR 121 ..................................................................... 3.730, 4.100, 4.120, 4.150 Bell v Stewart (1920) 28 CLR 419 ................................ 6.140, 6.230, 6.260, 6.810, 6.820, 6.870, 6.880 Bell v Umina Beach Bowling Club Ltd [2003] NSWSC 846 ............................................................. 6.890 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 ....................... 3.880, 3.960, 3.1160 Beloff v Pressdram Ltd [1973] 1 All ER 241 ..................................................................................... 7.330 Benchmark Building Supplies Ltd v Mitre 10 (New Zealand) Ltd [2004] 1 NZLR 26 .................... 12.190 Bennett v Minister of Community Welfare (1992) 176 CLR 408 ...................................................... 11.90 Bennette v Cohen (2005) 64 NSWLR 81 .......................................................................................... 3.210 Bernstein v Skyviews and General Ltd [1978] 1 QB 479 ...................................................... 8.720, 8.850 Berryman v Solicitor-General [2005] 3 NZLR 121 ............................................................................. 5.760 Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 ............................ 3.700, 3.710, 3.1360 Bhagat v Global Custodians Ltd [2002] NSWCA 160 ............................................................ 6.530, 6.550 Bibby v Bulk Carriers Ltd v Cansulex Ltd [1989] QB 155 ................................................................ 5.780 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 .................................................. 3.1330, 3.1340 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 ......................................................................... 3.450 Bills v Brown [1974] Tas SR 117 ........................................................................................................ 9.560 Birmingham v Fodor’s Travel Publications Inc 833 P 2d 70 (Haw 1992) ...................................... 11.280 Bissett v Deputy State Coroner [2011] NSWSC 1182 ........................................................... 5.420, 5.440 Bjelke-Petersen v Warburton [1987] 2 Qd R 465 ....................................................... 3.320, 3.410, 3.430 Blackie & Sons Ltd v Lothian Book Publishing Co Pty Ltd (1921) 29 CLR 396 ............................. 12.70 Blackshaw v Lord [1984] QB 1 ............................................................................................... 3.940, 3.960 Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 ..................................................... 5.730 Bleyer v Google Inc LLC (2014) 311 ALR 529 ............................................... 3.40, 3.560, 3.1270, 6.160 Bond v Barry [2007] ATPR 42-187 ..................................................................................... 3.1420, 3.1450 Bond v West Australian Newspapers Ltd (No 2) [2008] WASC 249 ................................................ 7.580 Bonnard v Perryman [1891] 2 Ch 269 ............................................................................................. 3.1370 Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] VSC 429 ...................................................................................................................................... 8.1030 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 ........... 3.340, 3.520, 3.710, 3.1460 Boucher v The King [1951] 2 DLR 369 ............................................................................................. 10.40 Bourns Inc v Raychem Corp [1999] 3 All ER 154 ............................................................................ 5.730 xiv

Table of Cases Bourns Inc v Raychem Corp [1999] 1 All ER 908 ............................................................................ 5.760 Bowen-Rowlands v Argus Press Ltd (1926) ...................................................................................... 3.880 Bowin Designs Pty Ltd v Australian Consumers Association (unreported, Federal Court, Lindgren J, 6 December 1996) ..................................................................................................... 3.940 Bowman v Secular Society Ltd [1917] AC 406 ................................................................................. 9.390 Boyd v Angus & Robertson Ltd (1946) 63 WN (NSW) 189 ............................................................. 9.570 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 ............................................. 3.150, 3.160, 3.1160 Bradbury v Staines; Ex Parte Staines [1970] Qd R 76 .................................................................... 9.540 Bradlaugh v Gosset (1884) 12 QBD 271 ............................................................................................. 4.20 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 ............................................................................. 8.600 Brandenburg v Ohio 395 US 444 (1969) ...................................................................... 2.80, 10.40, 11.40 Brander v Ryan (2000) 78 SASR 234 ...................................................................... 3.140, 3.990, 3.1000 Braun v Soldier of Fortune 968 F 2d 1110 (11th Cir 1992) ............................................................ 11.310 Bravehearts Inc v County Court of Victoria (2010) 29 VR 421 ........................................................ 5.250 Bread Manufacturers Ltd, Ex parte; Re Truth & Sportsman Ltd [1937] 37 SR (NSW) 242 .......... 6.140, 6.370, 6.710 Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 ............................................................... 3.1170 Bridges v California 314 US 252 (1941) ............................................................................................ 6.940 Briggs v Lunt (No 4) [2011] WASCA 145 ............................................................................................ 6.20 British American Tobacco Australia Ltd v Secretary, Department Of Health And Ageing (2011) 281 ALR 75 ........................................................................................................................ 4.160 British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571; [2003] VSCA 43 .......................................................................................... 5.500, 5.730, 5.750, 5.770, 5.780 British American Tobacco Australia Services Ltd v John Fairfax Publications [2006] NSWSC 1197 ................................................................................................................................. 7.410 British Broadcasting Corporation v Harpercollins Publishers Ltd [2010] EWHC 2424 ........... 7.80, 7.230 British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 ...................................................................................................................................... 3.1460 British Railways Board v Pickin [1974] AC 765 ................................................................................... 4.80 British Steel Corporation v Granada Television Ltd [1981] AC 1096 ............ 7.240, 7.330, 7.360, 7.580, 7.590, 7.600, 8.1050 Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133 ............................................................................... 5.670 Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120 ......................... 5.20 Broadway Approvals v Odhams Press [1964] 2 QB 683 ................................................................ 3.1240 Broken Hill Proprietary Company Ltd v Dagi [1996] 2 VR 117 .......................................................... 6.20 Bromfield, Re; Ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 ....... 5.160, 5.170, 5.310, 5.340 Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761 ........... 9.240, 9.300, 9.320, 9.490, 10.90 Brown v Attorney-General [2006] NZAR 552 ......................................................................... 8.600, 8.610 Brown v Classification Review Board (1997) 145 ALR 464 ................................... 9.650, 10.240, 10.270 Brown v John Fairfax & Sons Ltd (unreported, NSW Supreme Court, Hunt J, 13 July 1988) .............................................................................................................................................. 3.280 Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225; 154 ALR 67 ....................................................... 1.10, 2.90, 3.990 Brown v Palmer [2008] VSC 335 ....................................................................................................... 8.370 Browne v Associated Newspapers Ltd [2008] QB 103 ..................................................................... 8.560 Browne v Dunn (1893) 6 R 67 ......................................................................................................... 3.1460 Bryant v Queensland Newspapers Pty Ltd [1997] HREOC 23 ............................................... 9.80, 9.180 Brych v Herald and Weekly Times Ltd [1978] VR 727 ..................................................................... 6.680 Bryl v Nowra and Melbourne Theatre Company (1999) EOC 93-022 ........... 9.240, 9.290, 9.300, 9.320 Buchanan v Jennings [2002] 3 NZLR 145 ............................................................................. 4.120, 4.130 Buchanan, Re (1964) 65 SR (NSW) 9 ................................................................................... 7.510, 7.530 Buckley v Wathen [1973] VR 511 ...................................................................................................... 9.570 Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 .................................. 3.440 xv

Australian Media Law Bulun Bulun v R & T Textiles Pty Ltd (1998) 86 FCR 244 ............................................................ 12.180 Bunny Industries Ltd v FSW Enterprises Pty Ltd [1982] Qd R 712 ............................................... 15.260 Bunt v Tilley [2006] EWHC 407; [2007] 1 WLR 1243 ........................................................... 3.560, 6.160 Burchett v Kane [1980] 2 NSWLR 266(n) ......................................................................................... 3.840 Burdett v Abbot (1811) 14 East 1; 104 ER 501 ..................................................................... 4.210, 4.220 Burge v Swarbrick (2007) 232 CLR 336 ............................................................................................ 12.90 Burns v Dye [2002] NSWADT 32 ......................................................................................................... 9.90 Burns v Laws [2008] NSWADTAP 32 ..................................................................................... 9.490, 9.520 Burns v Laws (No 2) [2007] NSWADT 47 ................................................................................ 9.90, 9.130 Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267 ..................................................... 9.90, 9.360 Burns v Ransley (1949) 79 CLR 101 ..................................................................................... 10.40, 10.60 Burrell v The Queen [2007] NSWCCA 65 ......................................................................................... 5.820 Burton v Harris [1979] Qd R 548 ......................................................................................................... 6.80 Burton v Parker [1998] TASSC 104 ................................................................................................. 3.1550 Buswell v Carles (No 2) [2013] WASC 54 .................................................................. 5.670, 5.730, 5.770 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 .............................................. 13.40, 13.80 Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994) ............................................................................................................... 3.130, 3.280, 3.440 Byers v Edmondson 826 So 2d 551 (2002) .................................................................................... 11.300 Byrne v Deane [1937] 1 KB 818 ................................................................................. 3.180, 3.560, 6.160 Byrnes v Barry [2003] ACTSC 54 .................................................................................................... 3.1550

C C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672 ................................. 8.610, 8.620, 8.1030, 8.1040 C v L [2005] SASC 315 .................................................................................................................... 3.1150 CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 ............................................................ 7.450, 7.490 CD and MQ v Medical Practitioners Board of Victoria (1996) 11 VAR 175 ..................................... 5.160 CDE v MGN Ltd [2010] EWHC 3308 ................................................................................................. 8.560 CTB v News Group Newspapers Ltd [2011] EWHC 1232 ........................... 7.410, 7.490, 8.550, 8.1030 CTB v News Group Newspapers Ltd [2011] EWHC 1326 .................................................. 7.490, 8.1040 Cabassi v Vila (1940) 64 CLR 130 .................................................................................................... 3.740 Caccavo v Daft [2006] TASSC 36 ...................................................................................................... 3.700 Cain v Glass (No 2) (1985) 3 NSWLR 230 ....................................................................................... 5.120 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 ......................................... 3.490, 3.960, 3.1090, 8.270 Cambridge University Press v University Tutorial Press Ltd (1928) 45 RPC 335 ......................... 12.100 Camelot Group plc v Centaur Communications Ltd [1999] QB 124 ................................................ 7.660 Cameron v Becker (1995) 64 SASR 238 .......................................................................................... 4.620 Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301 ................................................ 3.790 Campbell v MGN Ltd [2004] 2 AC 457 ....................................................... 8.530, 8.570, 8.1040, 8.1050 Campbell v Mirror Group Newspapers Ltd [2003] 1 All ER 224 ............................................. 7.60, 8.940 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 .................................. 13.70 Camporese v Parton (1983) 150 DLR (3d) 208 ..................................................................... 3.940, 3.950 CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485; 147 ALR 539 ........................................................................................... 15.220, 15.260 CanWest Global Communications Corporation v Australian Broadcasting Authority (1998) 82 FCR 46; 153 ALR 47 ............................................................................................................. 15.220 CanWest Global Communications Corporation v Treasurer of the Commonwealth of Australia (1997) 147 ALR 509 .................................................................................................... 15.510 Canada (House of Commons) v Vaid [2005] 1 SCR 667 ................................................................. 4.230 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 ................................................................................................................... 15.260 Cantrell v Forest City Publishing Co 419 US 245 (1974) ................................................................. 8.490 Carindale Country Estate Pty Ltd v Astill (1993) 42 FCR 307 .............................................. 7.300, 7.320 Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 ................................... 3.340, 3.1130 Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 ............................................................ 3.1420 xvi

Table of Cases Carmyllie Pty Ltd v Mudgee Shire Council (unreported, Vic Supreme Court, Lusher J, 15 November 1984) ............................................................................................................................ 8.730 Carra v Hamilton (2001) 3 VR 114 ...................................................................................................... 5.10 Carrey v ACP Publishing Pty Ltd [1999] 1 VR 875 ........................................................................... 3.700 Carrier v Bonham [2002] 1 Qd R 474 .................................................................................. 8.920, 11.250 Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 ............................................. 3.1320, 3.1330 Case of the Sheriff of Middlesex (1840) 11 Ad & E 273; 113 ER 419 ............................................ 4.210 Casey v Candler (1874) 5 AJR 358 ..................................................................................................... 6.40 Cassell & Co v Broome Ltd [1972] AC 1027 ..................................................................... 3.1320, 3.1340 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 ..................................................... 3.320, 3.330 Cassidy v Saatchi & Saatchi Australia Pty Ltd (2004) 134 FCR 585 ................................. 13.40, 13.360 Castrol Australia Pty Ltd v Emtech Associates Pty Ltd (1980) 33 ALR 31 ...................................... 7.330 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 ...... 9.30, 9.90, 9.130, 9.140, 9.270, 9.320, 9.460, 9.470, 9.490 Central Hudson Gas & Electric Corporation v Public Service Commission of New York 447 US 557 ................................................................................................................................. 13.480 Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 ................................................... 5.730 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 ........ 3.100, 3.120, 3.130, 3.140, 3.190, 3.260, 3.700, 3.820, 3.830, 3.840, 3.1320 Chalmers v Payne (1835) 2 CM & R 156 ......................................................................................... 3.240 Chan v Sellwood [2009] NSWSC 1335 ............................................................................................. 8.650 Chance International Pty Ltd v Forbes (1968) 12 FLR 425; [1968] 3 NSWR 487 ............. 9.540, 9.600, 9.620 Channel Nine SA Pty Ltd v Police [2014] SASC 69 ......................................................................... 5.470 Channel Seven Adelaide Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 32 ............................................................................................. 13.440, 13.450, 14.740 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 ......... 3.1130, 3.1140, 3.1150, 3.1170, 3.1190 Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296 .......................................... 3.120, 3.450 Channel Seven Adelaide Pty Ltd v Stockdale-Hall [2005] SASC 307 .............................................. 5.570 Channel Seven Brisbane Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 179 ......................................................................................................... 14.950, 14.960 Channel Seven Perth Pty Ltd v “S” (A Company) (2007) 34 WAR 325; [2007] WASCA 122 ................................................................................................................................................. 8.420 Channel Seven Pty Ltd v An Accused (2008) 103 SASR 459 ......................................................... 5.470 Channel Seven Pty Ltd v Draper [2004] SASC 351 ......................................................................... 5.470 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 ................................... 3.670, 3.1360 Chao v Chao [2008] NSWSC 584 ............................................................................... 8.110, 8.250, 8.270 Chaplinsky v New Hampshire 315 US 568 (1942) .............................................................................. 2.80 Chapman v Conservation Council (SA) (2002) 82 SASR 449 ............................... 3.990, 3.1100, 3.1320 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 ............................. 3.1280, 3.1360 Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 .............. 3.280, 3.1130, 3.1160, 3.1190, 3.1370, 8.980 Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 ....................................... 3.220, 3.240, 3.250 Chatterton v Secretary of Capitalist State for India [1895] 2 QB 189 .............................................. 3.740 Chaudhary v Attorney-General [1999] FJCA 27 ................................................................................ 6.940 Chenard & Co v Arissol [1949] AC 127 ............................................................................................. 3.730 Chief Commissioner of Police (Vic), Re (2005) 214 ALR 422 .......................................................... 5.170 Chief Executive Officer of Customs v Carman [2004] QDC 433 .................................................... 10.270 Chippett v Thompson (1868) 7 SCR (NSW) (L) 349 .......................................................................... 6.40 Church of Scientology Inc v Transmedia Productions Pty Ltd (1987) Aust Torts Reports 80-101 ................................................................................................................................. 8.690, 8.760 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 ................................. 3.730, 4.80 Church of Scientology of California v Kaufman [1973] RPC 635 ......................................... 7.330, 7.420 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 ................................................................................................................................. 3.1370 xvii

Australian Media Law Church of the New Faith v Commissioner for Payroll Tax (Vic) (1983) 154 CLR 120 .................... 9.480 Citicorp Life Insurance Ltd v Lubransky; Bagiotas v Citicorp Life Insurance Ltd [2005] VSC 101 ............................................................................................................................. 5.770, 5.780 Civil Aviation Authority v Australian Broadcasting Corporation (1995) 39 NSWLR 540 .......... 6.40, 6.50, 6.90, 6.260, 6.280, 6.520, 6.560, 6.580, 6.590, 6.600, 6.780 Clague v APN News and Media Ltd [2012] NZHC 2898 .................................................................. 8.610 Clark and Attorney-General of Canada, Re (1978) 81 DLR (3d) 33 ................................................ 4.150 Clarke v Nationwide News Pty Ltd (t/as The Sunday Times) (2012) 289 ALR 345 ............. 9.40, 9.300, 9.310, 9.360 Clarke v Norton [1910] VLR 494 ...................................................................................................... 3.1130 Clarkson v The Mandarin Club Ltd [1998] FCA 1685 ....................................................................... 6.550 Clayton v Heffron (1960) 105 CLR 214 ............................................................................................... 4.80 Clift v Narragansett Television 688 A 805 (1996) ............................................................................ 11.170 Clough v Leahy (1904) 2 CLR 139 ...................................................................................................... 6.80 Clyne v Bowman (1986) 11 NSWLR 341 ........................................................................................... 8.110 Cobra Golf Inc v Rata [1996] FSR 819 ............................................................................................. 5.730 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 ............ 7.50, 7.60, 7.220, 7.230, 7.240, 7.260, 8.940 Coco v The Queen (1994) 179 CLR 427 ................................................................... 8.320, 8.680, 8.700 Cojuangco v John Fairfax & Sons Ltd (No 2) (1991) Aust Torts Reports 81-068 ........................... 7.610 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 .............................. 2.80, 2.90, 2.100, 5.40, 7.630 Coles-Smith v Smith [1965] Qd R 494 .............................................................................................. 8.730 Colina, Re; Ex parte Torney (1999) 200 CLR 386 .............................. 6.100, 6.780, 6.810, 6.920, 6.930 Collard v State of Western Australia (No 2) [2013] WASC 55 .............................................. 5.610, 5.620 Collard v State of Western Australia (No 3) [2013] WASC 70 .............................................. 5.160, 5.250 Collis v Cater, Stoffell & Fortt Ltd (1898) 78 LT 613 ........................................................................ 12.70 Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1 ........................................... 4.80 Commercial Bank of Australia Ltd v Preston [1981] 2 NSWLR 554 ................................................ 6.540 Commission for Racial Equality v Dutton (1989) IRLR 8 .................................................................. 9.210 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 ......... 7.50, 7.150, 7.240, 7.260, 7.280, 7.330, 10.20 Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393 ........................................................ 2.90 Commonwealth v Vance (2006) 158 ACTR 47 .................................................................................... 4.80 Commonwealth Bank of Australia v Mehta (1991) ATPR 41-103 ..................................................... 13.40 Communications, Electrical, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 89 FCR 17; 159 ALR 73 .............................................................................. 3.990 Community Television Sydney Ltd v Australian Broadcasting Authority (2004) 136 FCR 316 ............................................................................................................................................... 14.630 Competition and Consumer Commission v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 ................................................................................................................ 6.160 Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 ........................... 5.730 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 .......................................... 13.50 Concrete Pty Ltd v Parramatta Designs & Developments Pty Ltd (2006) 229 CLR 577 .............. 12.230 Connelly v Director of Public Prosecutions [1964] AC 1254 ............................................................. 5.100 Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 ...................................... 3.990, 3.1000 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 ........................................................ 3.440 Coogi Australia Pty Ltd v Hysport International Pty Ltd (1998) 86 FCR 154 .................................. 12.90 Cook v Alexander [1974] QB 279 ...................................................................................................... 3.830 Cooper v The Queen (1961) 105 CLR 177 ....................................................................................... 10.60 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 ...................... 12.350, 12.360, 12.370 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 ......................................................................... 3.300 Corelli v Gray (1913) 29 TLR 570 ................................................................................................... 12.280 Corelli v Gray (1913) 30 TLR 116; (1913) 1B IPR 183 .................................................................. 12.280 Cornes v Ten Group Pty Ltd [2011] SASC 104 ................................................................... 3.130, 3.1280 Cornwell v Myskow [1987] 2 All ER 504 .......................................................................................... 3.1160 xviii

Table of Cases Coroner’s Court of Western Australia, Re; Ex parte Porteous (2002) 26 WAR 483; [2002] WASCA 144 .......................................................................... 6.140, 6.220, 6.520, 6.560, 6.600 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 74 ALR 428 .... 7.260, 7.300, 7.330, 7.360 Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154 ............................................... 3.530 Coulthard v South Australia (1995) 63 SASR 531 ..................................................... 7.250, 7.270, 7.280 Cowley v Pulsifer 50 Am Rep 318 (1884) ........................................................................................... 5.20 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 ......................................................................... 3.1340 Craig v Attorney-General (1986) 2 CRNZ 551 .................................................................................. 8.600 Craig v Harney 331 US 367 (1947) ................................................................................................... 6.940 Crampton v Nugawela (1996) 41 NSWLR 176 ............................................................................... 3.1320 Crane v Gething (2000) 97 FCR 9 .................................................................................................... 4.240 Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1 ..... 7.240, 8.520, 8.940, 8.1040 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 ...................................................... 9.80, 9.240, 9.250 Crest Homes Plc v Marks [1987] AC 829 .............................................................................. 5.730, 5.780 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ........................................ 11.20 Cronulla-Sutherland District Rugby League Football Club Ltd v Nationwide News Pty Ltd [2013] NSWSC 494 ......................................................................................................................... 7.60 Crookes v Newton [2011] 3 SCR 269 ................................................................................................ 3.560 Cross v Denley (1952) 52 SR (NSW) 112 ......................................................................................... 3.440 Crossman v Fennemore (1986) 43 SASR 287 .................................................................................. 9.800 Crowe v Graham (1968) 121 CLR 375 ...................................... 9.10, 9.540, 9.570, 9.590, 9.600, 9.620 Crowley v Glissan (1905) 2 CLR 744 ................................................................................................ 3.660 Crown Suppliers PSA v Dorkins (1991) IRLR 327 ............................................................................ 9.210 Cruise and Kidman v Southdown Press (1993) IPR 125 .................................................................. 8.440 Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991) ......................................... 3.560, 3.1270 Cummins v Bond [1927] 1 Ch 167 .................................................................................................. 12.160 Cummins v Vella (2002) AIPC ¶91-812; [2002] FCAFC 218 .......................................................... 12.200 Cunliffe v Commonwealth (1994) 182 CLR 272 .................................................................................. 2.90 Czatyrko v Edith Cowan University (2005) 214 ALR 349 ................................................................. 11.20

D D1 v P1 [2012] NSWCA 314 .............................................................................................................. 5.440 DJL v Central Authority (2000) 201 CLR 226 .................................................................................... 5.100 DW v The Queen [2014] NSWCCA 28 .................................................................................. 8.270, 8.380 Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 ...................................................... 3.860, 3.1080 Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSW ADT 188 ........................................................ 5.730 Dalia v United States 441 US 238 (1979) ......................................................................................... 8.320 Dallas Buyers Club LLC v iiNet Ltd [2015] FCA 317 ...................................................................... 12.350 Dalton v Bartlett (1972) 3 SASR 549 ..................................................................................... 9.540, 9.560 Dando v Anastassiou [1951] VLR 235 ................................................................................................. 5.10 Darwin Bakery v Sully (1981) 36 ALR 371 ...................................................................................... 13.110 Data Access Corp v Powerflex Services Pty Ltd (1999) 202 CLR 1 ............................................... 12.90 Daubney v Cooper (1829) 10 B & C 237; 109 ER 438 ..................................................................... 5.10 David Jones Ltd v The Australia Institute Ltd [2007] FCA 962 ...................................................... 3.1460 David Syme & Co Ltd v Canavan (1918) 25 CLR 234 .................................................................... 3.410 David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294 ..... 5.20, 5.30, 5.60, 5.80, 5.130 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 ...................................................................... 3.700 David Syme & Co Ltd v Maher [1977] VR 516 ............................................................................... 3.1340 Davidson v Time Warner 25 Med L Rptr 1705 (SD Tex 1997) ...................................................... 11.310 Davis v Baillie [1946] VLR 486 ........................................................................ 6.220, 6.230, 6.430, 6.470 Davis v Commonwealth (1988) 166 CLR 79 ................................................................................... 13.430 Dawson Bloodstock Agency v Mirror Newspapers Ltd [1979] 1 NSWLR 16 ................................... 3.140 Dawson: Re Australian Consolidated Press Ltd, Ex parte [1961] SR (NSW) 573 .......................... 6.190 De Filippo v NBC 446 A 2d 1036 (RI 1982) .................................................................................... 11.290 xix

Australian Media Law De Haes and Gijsels v Belgium (1998) 25 EHRR 1 ......................................................................... 6.940 Delbert-Evans v Davies (1945) 2 All ER 167 .................................................................................... 6.180 Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 .................................................................... 3.820 Dennis v United States 341 US 494 (1951) ........................................................................................ 2.80 Department of Community Services, Director-General of v D [2006] NSWSC 827 ........................ 7.520 Department of Economics, Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314 .................................................................................................... 5.430 Derbyshire County Council v Times Newspapers [1993] AC 534 .................................................... 3.540 Deren v New South Wales (1998) Aust Torts Reports 81-463 ......................................................... 3.990 Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 ................... 12.110 Dhooharika v Director of Public Prosecutions (Mauritius) [2014] UKPC 11 ............. 6.810, 6.820, 6.930, 6.940 Dian AO v Davis Frankel & Mead [2005] 1 All ER 1074 ........................................................ 5.50, 5.670 Dickason v Dickason (1913) 17 CLR 50 ........................................................................... 5.10, 5.40, 5.50 Dietemann v Time Inc 449 F 2d 245 (1971) ..................................................................................... 8.470 Dietrich v The Queen (1992) 177 CLR 292 ...................................................................................... 6.780 Dillon v Balfour (1887) 20 Ir LR 600 ........................................................................................ 4.40, 4.100 Dingle v Associated Newspapers Ltd [1960] 2 QB 405 ...................................................................... 4.80 Director of Public Prosecutions v Australian Broadcasting Corporation (1986) 86 FLR 153; 7 NSWLR 588 .................................................................................................. 6.90, 6.310, 6.700 Director of Public Prosecutions v B [2013] SASC 120 ..................................................................... 5.470 Director of Public Prosecutions v F (unreported, Vic Supreme Court, Cummins J, 30 November 1995) .............................................................................................................................. 5.30 Director of Public Prosecutions v Francis (2006) 95 SASR 302; [2006] SASC 211 ........... 6.140, 6.230, 6.260, 6.310, 6.350, 6.370, 6.680, 6.880 Director of Public Prosecutions v Francis (No 2) (2006) 95 SASR 321; [2006] SASC 261 ........... 6.960 Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 ............. 6.140, 6.950 Director of Public Prosecutions v Johnson (2002) 6 VR 227 ........................................................... 6.950 Director of Public Prosecutions v Nakhla [2006] NSWSC 781 ......................................................... 8.250 Director of Public Prosecutions v Theophanous [2009] VSC 325 .................................................... 5.570 Director of Public Prosecutions v Whyte [1972] AC 849 ................................................................... 9.600 Director of Public Prosecutions v Wran (1987) 86 FLR 92 ...... 6.70, 6.140, 6.150, 6.180, 6.220, 6.230, 6.330, 6.340, 6.670, 6.690, 6.750, 6.950, 6.960 Director of Public Prosecutions (Cth) v Ho (Ruling No 2) [2009] VSC 388 ....................................... 5.80 Director of Public Prosecutions (Cth) v Magistrates Court of Victoria [2011] VSC 593 .................. 5.530 Director of Public Prosecutions (Cth) v Sexton (2008) 181 A Crim R 507; [2008] NSWSC 152 .............................................................................................................. 6.70, 6.230, 6.960 Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1990) 168 CLR 594 .................................................................................................................... 13.460, 13.470, 13.480 Director of Public Prosecutions (Cth) v United Telecasters Sydney Ltd (1992) 7 BR 364 ............ 6.730, 6.950 Director of Public Prosecutions (NSW) v Fordham (2010) 202 A Crim R 254; [2010] NSWSC 795 ..................................................................................... 8.190, 8.210, 8.220, 8.290, 8.340 Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613 ...................................... 5.760 Dixon v Anti-Discrimination Commissioner of Queensland [2005] 1 Qd R 33 ................................. 9.480 Djuricanin v Foreign Language Publications Pty Ltd (unreported, NSW Supreme Court, 12 May 1995) ................................................................................................................................ 3.280 Dobson v Hastings [1992] Ch 394; 2 All ER 94 ........................................................... 5.50, 5.670, 5.675 Doe v Australian Broadcasting Corporation [2007] VCC 281 ............... 5.380, 5.570, 7.60, 8.960, 8.970, 11.70, 11.230 Doe v John Fairfax Publications Pty Ltd (1995) 125 FLR 372 ......................................................... 5.230 Doe v Yahoo!7 Pty Ltd [2013] QDC 181 ........................................................................................... 8.960 Donoghue v Allied Newspapers Ltd [1938] Ch 106 ............................................................. 12.20, 12.170 Donoghue v Hayes (1831) Exch 265 ................................................................................................. 3.200 Donovan’s Application, Re [1957] VR 333 ......................................................................................... 5.820 Doolan v Waltons Ltd (1981) 39 ALR 408 ....................................................................................... 13.120 xx

Table of Cases Douglas v Hello! Ltd [2001] QB 967; 2 All ER 289 ................................................... 7.240, 8.440, 8.520 Douglas v Hello! Ltd [2003] EWHC 786 ............................................................................................ 8.940 Douglas v Hello! Ltd [2006] QB 125 .................................................................................................. 8.560 Douglas v Hello! Ltd (No 3) [2007] 2 WLR 920 ......................... 7.60, 7.200, 7.210, 7.230, 7.310, 8.530 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 ............................. 3.40, 3.50, 3.480, 6.160 Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 ...................................................... 13.40 Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293 .......................................................................... 4.230 Drivetime Radio Australia Pty Ltd v Pivotal Creative Solutions Pty Ltd [2010] NSWSC 1103 ................................................................................................................................................ 5.730 Duane v Granrott [1982] VR 767 ...................................................................................................... 3.1160 Ducret v Chaudhary’s Oriental Carpet Palace Pty Ltd (1987) 16 FCR 562 .................................. 13.120 Duff v Communicado Ltd [1996] 2 NZLR 89 ..................................................................................... 6.540 Duff v The Queen (1979) 39 FLR 315 ............................................................................................... 6.280 Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) ........................ 3.1470, 3.1550 Duncombe v Daniell (1837) 3 Car & P 223; 173 ER 470 ................................................................ 3.970 Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961 .............................. 3.930 Dunn, Re; Re Aspinall [1906] VLR 493 ............................................................................................... 6.40 Dupas v Channel Seven Melbourne Pty Ltd [2012] VSC 486 ................................... 5.210, 5.230, 5.290 Dupas v The Queen (2010) 241 CLR 237 ........................................................................................ 6.120 Duracell Australia Pty Ltd v Union Carbide Australia Ltd (1988) ATPR 40-918 ................... 13.40, 13.70 Dye v Commonwealth Securities Ltd [2010] FCA 720 ...................................................................... 8.960

E E v Australian Red Cross Society (1991) 27 FCR 310 ...................................................................... 5.80 E Hulton & Co v Jones [1910] AC 20 ....................................................................... 3.320, 3.400, 3.1250 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 .............. 12.270, 12.310 EPP v National Buying Group Pty Ltd [2001] NSWSC 482 ............................................................. 7.190 ESB v Victoria [2010] VSC 479 .......................................................................................................... 5.120 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 ............ 7.410, 8.560, 8.570, 8.580, 8.1040 Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 ............................................. 12.260 Earl Spencer v United Kingdom (1998) 25 EHRR CD 105 .............................................................. 8.520 Earthquake Commission v Krieger [2013] NZHC 3140 ....................................................................... 7.60 East Sussex County Council v Stedman [2010] 1 FCR (UK) 567 ................................................... 5.290 Eatock v Bolt (2011) 197 FCR 261; [2011] FCA 1103 ................................................. 2.110, 9.50, 9.350 Eatock v Bolt (No 2) (2011) 284 ALR 114; [2011] FCA 1180 ........................................................... 9.360 Ebbells v Rewell [1908] VLR 261 ...................................................................................................... 8.660 Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 .................................................................... 3.210 EdSonic Pty Ltd v Cassidy (2010) 189 FCR 271 ............................................................................ 12.220 Edelsten v Investigating Committee of New South Wales (1986) 7 NSWLR 222 .................. 8.80, 8.110 Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254 ................................... 3.320, 3.1340 Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd [2010] WASC 257 .................. 3.520 Egan v Willis (1998) 195 CLR 424 .................................................................... 4.20, 4.230, 4.250, 4.500 Egan v Willis & Cahill (1996) 40 NSWLR 650 .................................................. 4.20, 4.230, 4.250, 4.350 Egger v Lord Chelmsford [1965] 1 QB 248 ....................................................................................... 3.960 Eisa Ltd v Brady [2000] NSWSC 929 .................................................................................... 5.675, 5.730 Ekermawi v Harbour Radio Pty Ltd [2010] NSWADT 145 ................................................................ 9.220 Ekermawi v Network Ten Pty Ltd [2008] NSWADT 334 ................................................................... 9.220 Eldred v Ashcroft (2003) 537 US 186; (2003) 56 IPR 608 ............................................................. 12.150 Ellis v Deheer [1922] 2 KB 113 .......................................................................................................... 5.820 Ellis v Trowen Frozen Foods 264 Cal App 2d 499 (1968) ............................................................. 11.280 Eltran Pty Ltd v Westpac Banking Corporation (1990) 25 FCR 322 ................................................ 5.730 Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 ................... 12.80, 12.320 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 ........................ 8.680, 8.760 Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 .............................................................. 3.1280 Energizer Australia Pty Ltd v Gillette Australia Pty Ltd (2001) 189 ALR 480 ................................ 13.120 xxi

Australian Media Law Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 ................................... 3.200 Environment Protection Authority v Pannowitz [2006] NSWLEC 219 ................................... 6.820, 6.890 Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; [2006] NSWLEC 797 ................................................................................................................................ 6.950 Equitycorp Industries Ltd v ACI International Ltd (1986) 10 ACLR 568 ......................................... 15.220 Erglis v Buckley [2003] QSC 440 ......................................................................................................... 4.80 Erglis v Buckley [2004] 2 Qd R 599 ......................................................................................... 3.730, 4.80 Erglis v Buckley [2005] QCA 404 ....................................................................................................... 4.160 Erglis v Buckley [2005] QSC 25 ......................................................................................................... 4.160 Erica Vale Australia Pty Ltd v Thompson & Morgan (Ipswich) Ltd (1994) 29 IPR 589 ................... 12.70 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 ....................... 5.50, 5.730, 5.770, 5.780 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 ................................... 8.990 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Court of Appeal, 13 October 1993) .......................................................................................................................... 8.990 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt J, 25 June 1991) .................................................................................................................. 3.140 Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt CJ in CL, 11 March 1993) .................................................................................... 3.1290, 3.1300 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 .......................................................... 6.90 Evans v Crichton-Browne (1981) 147 CLR 169 ................................................................................ 4.620 Evans v Detlefsen 857 F 2d 330 (6th Cir 1988) ............................................................................... 8.470 Evans v Finn (1904) 4 SR (NSW) 297 .............................................................................................. 8.860 Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 .............................................. 2.90 Evatt v Nationwide News (unreported, NSW Supreme Court, Newman J, 6 March 1997) .......... 3.1080 Evening News, Re (1880) 1 LR (NSW) L 211 ............................................................ 6.830, 6.890, 7.510 Eveready Australia Pty Ltd v Gillette Australia Pty Ltd (No 4) (2000) ATPR 41-751 ...................... 13.70 Ewing v Times Newspapers Ltd [2013] NICA 74 ............................................................................ 8.1040 Exchange Telegraph Company Ltd v Central News Ltd [1897] 2 Ch 48 ......................................... 7.230 Executive Council of Australian Jewry v Scully (1998) 160 ALR 138 .............................................. 9.280 Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119 ................................. 12.90

F F, Re [1977] 1 All ER 114 .................................................................................................................. 5.150 F, Re (1989) 51 SASR 141 ................................................................................................................ 5.470 FAI General Ins Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 ................................. 13.70 Faesenkloet v Jenkin [2014] NZHC 1637 ............................................................................... 8.610, 8.620 Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 ................................................................ 3.1360 Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52 ......... 5.190, 5.200, 5.210, 5.220, 5.240, 5.250, 5.290, 5.420, 5.440, 6.160, 6.790 Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 ...................................................................................................... 5.310 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 ................................................ 3.700 Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 ................................................. 3.560 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 ................................................................................................................................. 12.90 Farmer v Hyde [1937] 1 KB 728 ........................................................................................................ 3.820 Farquhar v Bottom [1980] 2 NSWLR 380 .............................................. 3.80, 3.190, 3.280, 3.300, 3.830 Farris v Boase [2013] WASC 227 ...................................................................................................... 8.380 Fastways Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (unreported, Federal Court, Gummow J, 27 March 1995) ................................................................ 3.1430, 13.410 Faulkner v Elliott [2010] FCA 884 ...................................................................................................... 4.620 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 ...... 3.80, 3.120, 3.170, 3.220, 3.300 Fayn v Thompson Properties Pty Ltd (1991) 7 BR 144 ................................................................... 3.130 Featherston v Tully (2002) 83 SASR 302; 194 ALR 703 .................................................................. 4.620 Featherston v Tully (No 2) (2002) 83 SASR 347; 128 LGERA 115 ................................................. 4.630 xxii

Table of Cases Felton v Mulligan (1971) 124 CLR 367 .............................................................................................. 8.960 Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727 ....................................................... 4.230, 4.350 Ferdinand v MGN Ltd [2011] EWHC 2454 ........................................................................................ 8.570 Finn v Hunter (1886) 12 VLR 656 ..................................................................................................... 3.740 First Equity Corporation of Florida v Standard & Poor’s Corporation 670 F Supp 115 (SD NY 1987) .............................................................................................................................. 11.350 Firth v State of New York 775 NE 2d 463 (NY 2002) ........................................................................ 3.50 Fitzgibbon v Barker, Gardner and Leader Associated Newspapers Pty Ltd; Re Schwartzkopff (1993) FLC 92-381 ......................................................................... 6.820, 6.920, 6.930 Flegg v Hallett [2014] QSC 278 ......................................................................................................... 3.730 Fleming v Securities Commission [1995] 2 NZLR 514 .................................................................... 11.350 Flood v Times Newspapers Ltd [2012] 2 AC 273 ................................................ 3.1020, 3.1030, 3.1080 Florida Publishing Co v Fletcher 340 So 2d 914 (1976) .................................................................. 8.470 Folbigg v The Queen [2007] NSWCCA 371 ...................................................................................... 6.790 Forster v Watson (1944) 44 SR (NSW) 399 ...................................................................................... 3.790 Foxtel Cable Television Pty Ltd v Nine Network Australia Pty Ltd (1997) 73 FCR 429; 143 ALR 516 .............................................................................................................................. 14.1230 Franchi v Franchi [1967] RPC 149 ..................................................................................................... 7.110 Francis v Herald & Weekly Times (unreported, 17 March 1987, Supreme Court of Victoria, Lush J) ............................................................................................................................... 6.80 Francis Day & Hunter Ltd v Bron [1963] Ch 587; (1963) 1A IPR 331 ............................. 12.280, 12.290 Francome v Mirror Group Newspapers Ltd [1984] 2 All ER 408; 1 WLR 892 .......... 1.10, 7.240, 7.330, 7.350, 7.360 Fraser v Evans [1969] 1 QB 349 .............................................. 7.240, 7.330, 7.380, 7.390, 7.410, 8.530 French v John Fairfax Publications Pty Ltd [2007] VSC 105 ........................................................... 7.580 French v Triple M Melbourne Pty Ltd (No 5) [2008] VSC 553 ....................................................... 3.1170 Fry v Bray [1959] 1 FLR 366 ............................................................................................................. 6.530

G G v Day [1982] 1 NSWLR 24 ........................................................................................ 7.60, 7.120, 8.960 G v The Queen (1984) 35 SASR 349 ............................................................................................... 5.470 GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] 1 WLR 984 ............................................................. 5.50, 5.670 GS v News Ltd (1998) Aust Torts Reports 81-466 .......................................................................... 11.190 Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 ...................................................... 11.60 Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403 .................................................... 3.1150 Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8 ........................................... 12.120 Galella v Onassis 353 F Supp 196 (1972) ...................................................................................... 11.180 Galella v Onassis 487 F 2d 986 (1973) ............................................................................................ 8.470 Gallagher v Durack (1983) 152 CLR 238 ............. 2.90, 6.70, 6.810, 6.820, 6.880, 6.920, 6.930, 6.950, 6.960 Gannett Co Inc v DePasquale 443 US 368 ........................................................................................ 5.20 Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 ........................................... 3.1150, 3.1170 Garrison v Louisiana 379 US 64 (1964) ............................................................................................ 6.940 Gartside v Outram (1856) 26 LJ Ch 113 ........................................................................................... 7.330 Gaskell & Chambers Ltd v Hudson, Dodsworth & Co [1936] 2 KB 595 ......................................... 5.675 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 .............................................. 13.330 Gathercole’s Case (1838) 2 Lewin 237; 168 ER 1140 ..................................................................... 9.390 Gee v Burger [2009] NSWSC 149 ..................................................................................................... 8.650 General Medical Council v British Broadcasting Corporation [1998] 3 All ER 426 ............................ 6.50 General Television Corporation Pty Ltd v Director of Public Prosecutions (2008) 19 VR 68; [2008] VSCA 49 .... 5.160, 5.190, 5.200, 5.210, 5.220, 5.230, 5.290, 5.330, 5.540, 6.950, 6.790 George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 ............................................. 13.70 Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 ................................................... 8.380 Gianni Versace SpA v Monte (2002) 119 FCR 349 ............................................................................ 9.50 Gibb v Gibb [1978] FLC 90-405 ......................................................................................................... 5.570 xxiii

Australian Media Law Gibbons v Duffell [1932] 47 CLR 520 ................................................................................................ 3.740 Gilbert v Minnesota 254 US 325 (1920) .............................................................................................. 2.80 Gilbert v The Queen (2000) 201 CLR 414 ........................................................................................ 5.290 Gill v Curtis Publishing 38 Cal 2d 273 (1952) ................................................................................... 8.490 Gill v Hearst Corporation 40 Cal 2d 224 (1953) ............................................................................... 8.490 Giller v Procopets (2008) 24 VR 1 ............. 7.60, 7.430, 8.10, 8.650, 8.920, 8.940, 8.950, 8.960, 8.970 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 .................................. 13.70 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd [2005] FCA 1647 ........................................ 13.70 Ginzburg v United States 383 US 463 (1966) ................................................................................... 11.40 Gisborne Herald Co Ltd v Solicitor-General [1995] 3 NZLR 563 .......................................... 6.470, 6.490 Gitlow v New York 268 US 652 (1925) ................................................................................................ 2.80 Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR 439 ........................................................... 13.110 Given v Snuffa Pty Ltd (1978) ATPR 40-083 ................................................................................... 13.240 Glasgow Corporation v Taylor [1922] 1 AC 44 ................................................................................ 11.280 Gleaves v Deakin [1980] AC 477 ..................................................................................................... 3.1470 Global One Mobile Entertainment Pty Ltd v ACCC (2012) ATPR 42-419 ........................................ 13.80 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25 ......... 13.410, 13.40, 13.60, 3.1410 Godfrey v Demon Internet Service Ltd [2001] QB 201 ......................................................... 3.560, 6.160 Goffin v Donnelly (1881) 6 QBD 307 ........................................................................................ 4.40, 4.150 Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 .................... 3.680, 3.1130, 3.1170 Goldsmith v Sperrings Ltd [1977] 1 WLR 478 ................................................................................. 3.1470 Goodwin v NGN Ltd [2011] EWHC 1437 ................................................................ 8.550, 8.1030, 8.1040 Goodwin v United Kingdom (1996) 22 EHRR 123 ................................................................ 7.510, 7.660 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 ..... 13.40, 13.60 Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 ............................ 3.40, 3.190, 3.480 Gosset v Howard (1845) 10 QB 411; 116 ER 158 ........................................................................... 4.220 Gould v TCN Channel 9 [2000] NSWSC 707 .................................................................................... 11.60 Gouldham v Sharrett [1966] WAR 129 ............................................................................................ 3.1550 Grand Jury Subpoena (Judith Miller), In re 397 F 3d 964 ............................................................... 7.520 Grant-Taylor v Jamieson [2002] NSWSC 634 .................................................................................... 7.450 Grassby v The Queen (1989) 168 CLR 1 ................................................................ 3.1470, 5.100, 5.160 Graves v Warner Bros 656 NW 2d 195 (2002) ............................................................................... 11.320 Green v Bartram (1830) 4 C & P 308 ............................................................................................... 8.770 Green v The City of Westminster Magistrates’ Court [2007] EWHC 2785 ...................................... 9.370 Green v The Queen (1996) 124 FLR 423 ........................................................................................... 8.80 Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 ............................................... 8.610, 8.1040 Greers Ltd v Pearman & Corder Ltd (1922) 39 RPC 406 .............................................................. 3.1460 Greig v Greig [1966] VR 376 ............................................................................................................. 8.730 Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 ..................... 3.1060, 3.1070, 3.1240 Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 .............. 3.1040 Griffiths v Lewis (1845) 14 LJQB 197 ................................................................................................ 4.110 Griffiths & Beerens Pty Ltd v Duggan (No 2) [2008] VSC 230 ........................................................ 5.780 Grocon v Construction, Forestry, Mining and Energy Union (No 2) [2014] VSC 134 ............. 6.20, 6.40, 6.950 Grofam Pty Ltd v KPMG Peat Marwick (1993) 27 IPR 215 ............................................................. 7.330 Grollo v Palmer (1995) 184 CLR 348 ......................................................................................... 5.10, 5.40 Grosse v Purvis [2003] QDC 151; [2003] Aust Torts Reports ¶81-706 ........ 8.650, 8.680, 8.730, 8.920, 8.1030, 8.1050, 8.1170 Grundmann v Georgeson (1996) Aust Torts Reports 81-396 ........................................................... 3.180 Guardian News and Media Ltd v AB, CD [2014] EWCA Crim B1 ..................................................... 5.20 Guay v Sun Publishing Co [1953] 4 DLR 577 ................................................................... 11.240, 11.260 Gul v Informant Senior Constable Creed [2010] VSC 185 ............................................................... 9.560 Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327 ...................................................................... 3.1370 Gumina v Williams (No 2) [1990] 3 WAR 351 .................................................................................. 3.700 Guthrie v Doyle Dane & Bernbach Pty Ltd (1977) 16 ALR 241 ....................................................... 13.50 xxiv

Table of Cases Guthrie v Metro Ford Pty Ltd (1977) ATPR 40-030 .......................................................................... 13.50 Gwynne v Wairapa Times-Age [1972] NZLR 586 .............................................................................. 3.210

H HIH; Australian Securities and Investments Commission v Adler (2001) 39 ACSR 216 ................. 5.675 HM Attorney-General v MGN Ltd & News Group Newspapers Ltd [2011] EWHC 2074 ................. 6.230 HM Attorney-General (UK) v Davey; Attorney-General (UK) v Beard [2013] EWHC 2317 ............. 6.800 HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 ......................................... 8.560 Habib v Commonwealth [2008] FCA 1494 ........................................................................................... 4.90 Hagan v Trustees of the Toowoomba Sports Ground Trust [2001] FCAFC 123 ............................. 9.240 Hahn v Conley (1971) 126 CLR 276 ................................................................................................ 11.110 Haisman v Smelcher [1953] VLR 625 ................................................................................................ 8.710 Halden v Marks (1996) 17 WAR 447 ................................................................................................... 4.80 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 ............................................................ 3.140 Halliday v Nevill (1984) 155 CLR 1 ........................................................................................ 8.680, 8.690 Hamed v The Queen [2012] 2 NZLR 305 ......................................................................................... 8.620 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 .............. 5.730, 5.760, 5.770, 5.780, 5.790, 6.90, 6.520, 6.540, 6.550, 6.560 Hamilton v Al Fayed [2001] 1 AC 395 ............................................................................................... 4.140 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 .......................................................................... 11.20 Hamilton v Osbourne 958 F 2d 1084 (11th Cir 1992) ..................................................................... 11.310 Hamling v US 418 US 87 (1974) ....................................................................................................... 9.590 Hammond v Commonwealth (1982) 152 CLR 188 ............................................................................. 6.80 Hammond v Scheinberg (2001) 52 NSWLR 49 .......................................................... 5.660, 5.670, 5.675 Hamsher v Swift (1992) 33 FCR 545 ....................................................................................... 4.90, 4.140 Hancock v Lynch [1988] VR 173 ........................................................................................................ 7.530 Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 .............. 7.530, 7.540, 7.580, 7.670, 7.680 Hancock Prospecting Pty Ltd v Hancock (No 2) [2014] WASC 85 .................................................. 7.540 Hanrahan v Ainsworth (1990) 22 NSWLR 73 .................................................................................... 3.790 Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44 ........................................................ 3.1080 Hansen v Western Australia [2010] WASCA 180 .............................................................................. 6.790 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2010) 184 FCR 537; [2010] FCA 478 ........................................................................................................ 14.1440 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 ............................................................................................ 14.930, 14.940, 14.960, 14.1160 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 .................................................... 3.170, 3.880, 3.920 Harding v Essey (2005) 30 WAR 1 .................................................................................................... 3.880 Harkianakis v Skalkos (1997) 42 NSWLR 22 ..... 6.70, 6.140, 6.230, 6.530, 6.540, 6.550, 6.680, 6.710, 6.750, 6.770 Harman v Secretary of State for the Home Department [1983] 1 AC 280 ...... 5.20, 5.730, 5.770, 5.780 Harms v Miami Daily News Inc 127 So 2d 715 (1961) .................................................................... 8.470 Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) Eq Opp Cases 92-604 .......... 9.120, 9.130, 9.140, 9.160, 9.170 Harris v Harris [2001] EWHC 231 (Fam) 231 ........................................................................ 6.820, 6.840 Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 ............................................................................................................................... 3.200, 3.1160 Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135 .................................................................... 3.700, 3.990 Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 ................................................................. 3.990 Hartnett v Crick [1908] AC 470 .......................................................................................................... 4.230 Haruna v The Queen [2013] WASCA 170 ......................................................................................... 6.800 Harvey v County Court (Vic) [2006] VSC 293 ............................................................ 7.510, 7.540, 7.560 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69 ............................................................... 3.1370 Hawkes and Son (London) Ltd v Paramount Film Service Pty Ltd [1934] Ch 593 ....................... 12.300 Hayward v Thompson [1982] QB 47 .................................................................................................. 3.350 He Kaw Teh v The Queen (1985) 157 CLR 523 .............................................................................. 6.140 Hearn v O’Rourke (2003) 129 FCR 64 .............................................................................................. 8.900 xxv

Australian Media Law Hearne v Street (2008) 235 CLR 125 ............................................................... 5.730, 5.760, 5.770, 6.20 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 ............................. 3.520 Hedley Byrne & Co v Heller & Partners [1964] AC 465 ................................................................. 11.330 Hegarty v Queensland Ambulance Service [2007] QCA 366 ............................................................ 11.20 Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473; 1 WLR 804 .......... 7.240, 8.520, 8.940 Hemmes v Seven Network Ltd [2000] NSWSC 246 ....................................................................... 3.1370 Henderson v Pioneer Homes Pty Ltd (1980) 29 ALR 597 ............................................................. 13.190 Henderson v Radio Corporation Pty Ltd (1960) 60 SR NSW 576 ................................................... 8.990 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 ................................. 13.340 Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 ................................................. 4.80 Henry v TVW Enterprises Ltd (1990) 3 WAR 474 ................................................................. 3.140, 3.410 Henwood v Harrison (1872) LR 7 CP 606 ....................................................................................... 3.1160 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 .......................................................... 3.200 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 .......................................................... 3.180 Her Majesty’s Advocate v William Beggs Opinion No 2 of Lord Osborne [2002] SLT 139 ........... 6.160, 6.230 Herald & Weekly Times Ltd v A [2005] VSCA 189; (2005) 160 A Crim R 299 ....... 5.160, 5.170, 5.330, 5.370 Herald & Weekly Times Ltd v Attorney-General (Vic) [2001] VSCA 152 ......................................... 6.270 Herald & Weekly Times Ltd v Buckley (2009) 21 VR 661 .............................................................. 3.1190 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418 ............................................... 14.20 Herald & Weekly Times Ltd v County Court of Victoria [2000] VSC 280 ........................................ 5.330 Herald & Weekly Times Ltd v Director of Public Prosecutions [2007] VSC 71 ............................... 5.380 Herald & Weekly Times Ltd v Gregory Williams (formerly identified as VAI) (2003) 130 FCR 435 ............................................................................................................................... 5.80, 5.120 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 2 VR 672 ......... 5.80, 5.120, 5.280, 5.380 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria [1999] 3 VR 231 ............ 5.20, 5.50, 5.670 Herald & Weekly Times Ltd v Magistrates’ Court of Victoria (2000) 2 VR 346 ................... 5.660, 5.670 Herald & Weekly Times Ltd v Magistrates Court of Victoria [2004] VSC 194 ................................. 5.240 Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria [1999] 1 VR 267 ..... 5.30, 5.160, 5.300, 5.310, 5.320 Herald & Weekly Times Ltd v Mokbel [2006] VSCA 93 .................................................................... 5.330 Herald & Weekly Times Ltd v PQR [2000] VSC 335 ........................................................................ 5.570 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 ......... 3.670, 3.700, 3.990, 3.1000, 6.780, 6.810, 8.1050 Herald & Weekly Times Ltd v Psychologists’ Registration Board of Victoria [1998] VSC 141 .......................................................................................................................................................... Herald & Weekly Times Ltd v The Guide Dog Owners’ and Friends’ Association [1990] VR 451 ........................................................................................................................................... 7.600 Herald & Weekly Times Ltd v Victoria [2006] VSCA 146 ................................................................. 5.340 Herald & Weekly Times Ltd v Williams (2003) 201 ALR 489 ........................................................... 5.280 Herceg v Hustler 814 F 2d 1017 (5th Cir 1987) ............................................................................. 11.290 Hercules v Phease [1994] 2 VR 411 ........................................................................................ 3.740, 6.80 Hevican v Ruane [1991] 3 All ER 65 ............................................................................................... 11.240 Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323 ...................................................................... 7.600 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 ................................. 3.990, 3.1000 Hickey v Sunday Newspapers Ltd [2010] IEHC 349 ....................................................................... 8.1040 Highway v Tudor-Stack [2006] NTCA 04 ........................................................................................... 4.200 Hinch v Attorney-General (Vic) (1987) 164 CLR 15; [1987] VR 721 .............. 6.70, 6.100, 6.140, 6.220, 6.680, 6.710, 6.730, 6.740, 6.750, 6.760, 6.950 Hinch v Director of Public Prosecutions [1996] 1 VR 683 ................................................................ 5.570 Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 ..................................................... 3.700 Hitchcock v TCN Channel Nine Pty Ltd [2000] NSWSC 198; (2000) Aust Torts Reports 81-550 ............................................................................................................................................ 7.230 Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82 ................................................. 7.230 xxvi

Table of Cases Hoani Te Tukino v Aotea District Maori Land Board [1941] AC 308 .................................................. 4.80 Hodder v Queensland Newspapers Pty Ltd [1994] 1 Qd R 49 ........................................................ 7.580 Hodgson v Imperial Tobacco Ltd [1998] 2 All ER 673 ........................................................................ 5.80 Hogan v Australian Crime Commission (2010) 240 CLR 651 ..................................... 5.80, 5.240, 5.530 Hogan v Hinch (2011) 243 CLR 506 ....... 2.90, 5.10, 5.20, 5.40, 5.50, 5.60, 5.80, 5.100, 5.160, 5.380, 5.440 Hogan v Pacific Dunlop Ltd (1988) 83 ALR 403 ............................................................................... 8.990 Hogan, Re; Ex parte West Australian Newspapers Ltd (2009) 41 WAR 288; [2009] WASCA 221 ................................................................................................................ 5.20, 5.50, 5.670 Holding v Jennings [1979] VR 289 ......................................................................................... 3.730, 4.150 Holiday Concepts Management Pty Ltd v General Television Corp Pty Ltd (unreported, Vic Supreme Court, Beach J, 7 December 1995) ....................................................................... 8.760 Holmdahl v Australian Electoral Commission (No 2) [2012] SASCFC 110 ...................................... 4.620 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 ............................................................ 5.730, 5.780 Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 ....................................................... 3.1320, 3.1360 Holt v Willing (1913) 9 Tas LR 70 ........................................................................................................ 5.40 Honey v Australian Airlines Ltd (1989) ATPR 40-961 ........................................................................ 8.990 Hope v I’Anson [1901] 18 TLR 201 ................................................................................................... 3.740 Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 ....................... 3.820, 3.830 Hopkinson v Lord Burghley (1867) 2 Ch App 447 ............................................................................ 5.730 Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 ................................................................ 3.280 Horne v Press Clough Joint Venture (1994) EOC 92-556 ................................................................ 9.360 Horner v Goulburn City Council (unreported, NSW Supreme Court, Levine J, 5 December 1998) ............................................................................................................................ 3.170 Horrocks v Lowe [1974] 1 All ER 662; [1975] AC 135 ........................................................ 3.960, 3.1460 Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd [1987] ATPR 48,271 .......................................................................................................................................... 3.1430 Hoser & Kotabi Pty Ltd v The Queen [2003] VSCA 194 ........................................... 6.890, 6.930, 6.940 Hosking v Runting [2005] 1 NZLR 1 ................................................ 8.440, 8.600, 8.620, 8.1020, 8.1040 Hough v London Express Newspaper Ltd [1940] 2 KB 507 ............................................................. 3.130 Houghton v Arms (2006) 225 CLR 553 ............................................................................................. 8.890 Howard v Crowther (1841) 8 M & W 601 .......................................................................................... 3.500 Howe v Harvey [2007] VSC 130 ........................................................................................................ 5.570 Howe v Lees (1910) 11 CLR 361 .................................................................................................... 3.1340 Howland v Blake Manufacturing Co 156 Mass 543; 31 NE 656 (1892) .......................................... 3.470 Huata v Prebble [2004] 3 NZLR 359 ................................................................................................. 4.150 Hubbard v Pitt [1976] QB 142 ................................................................................................ 8.840, 8.870 Hubbard v Vosper [1972] 2 QB 84 .................................................................................................... 7.420 Hudson v Nicholson (1839) 5 M&W 437; 151 ER 185 ..................................................................... 8.700 Hughes v West Australian Newspapers Ltd (1940) 43 WALR 12 .................................................... 3.820 Hugo Rich v Attorney-General (Vic) (1999) 103 A Crim R261 ......................................................... 6.950 Hume v The Council of the King’s School [2010] NSWSC 186 ......................................................... 5.50 Humphries v TWT Ltd (1993) 120 ALR 693 ...................................................................... 3.1320, 3.1330 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 ................................................................ 3.680, 3.1170 Hunt v Times Newspapers Ltd [2012] EWHC 1220 ........................................................................ 3.1020 Hunter v Canary Wharf Ltd & London Docklands Development Corporation [1997] AC 655 ...................................................................................................................................... 8.660, 8.830 Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808 .................................................. 8.570 Hutchins v Maughan [1947] VLR 131 ................................................................................................ 8.650 Hutchison v Robinson (1900) 21 LR (NSW) 130 ................................................................... 3.820, 3.830 Hyde v City of Columbia 637 SW 2d 251 (1982) ................................................... 11.40, 11.210, 11.220

I IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 ................ 12.20, 12.100, 12.110, 12.180, 12.320 Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 769 ...................................... 5.660, 5.675 xxvii

Australian Media Law Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 776 .................................................. 5.660 Independent Commission Against Corruption v Cornwall (1995) 38 NSWLR 207 .... 7.510, 7.540, 7.570 Independent Management Resources Pty Ltd v Brown [1987] VR 605 ........................................... 7.300 Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2005] 1 AC 90 ................................................................................................................................................... 5.160 Industrial Registrar of New South Wales v The Uniting Church In Australia Property Trust (NSW) [2003] NSWIRComm 387 ...................................................... 5.750, 6.530, 6.550, 6.710 Initial Services Ltd v Putterill [1968] 1 QB 396 ...................................................................... 7.230, 7.330 Interbrew SA v Financial Times Ltd [2002] EWCA Civ 274 .............................................................. 7.660 Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 ................................................................................................................................... 7.240 Isaacs v Cook [1925] 2 KB 391 ......................................................................................................... 3.750 Isbey v New Zealand Broadcasting Corporation (No 2) [1975] 2 NZLR 237 .................................. 7.580 Islamic Council of Victoria Inc v Catch the Fire Ministries Inc [2004] VCAT 2510 .......................... 9.490 Ives v State of Western Australia (No 2) [2010] WASC 221 .............................................................. 5.10 Ives v State of Western Australia (No 8) [2013] WASC 277 ............................................................ 3.710

J J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 ............................. 5.20, 5.80, 5.120, 5.270, 5.280 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 .................................................................... 5.340 Jacobs v Fardig (1999) EOC 93-016 ................................................................................................. 9.360 Jaillet v Cashman 189 NYS 743 (NY SC 1921) .............................................................................. 11.350 Jakudo Pty Ltd v SA Telecasters Ltd (No 2) (1997) 69 SASR 440 .................................... 3.700, 3.1370 Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 ........ 3.1020, 3.1080, 8.590, 8.1050 James v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 ................................................................ 3.830 James v Meow Media Inc 90 F Supp 2d 798 (WD Ky 2000) ........................................................ 11.300 James v Robinson (1963) 109 CLR 593 ......................................................... 6.100, 6.170, 6.180, 6.200 Jamieson v The Queen (1993) 177 CLR 574 ................................................................................... 3.740 Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84 ..................................................................... 5.120 Jenal v Milner (1994) 11 WAR 264 ........................................................................................ 8.780, 8.790 Jennings v Buchanan [2005] 2 All ER 273; 2 NZLR 577 ................................. 3.730, 4.30, 4.100, 4.120 Jenoure v Delmege [1891] AC 73 ...................................................................................................... 3.860 John v Associated Newspapers Ltd [2006] EWHC 1611 ................................................................ 8.1040 John Fairfax & Sons Ltd v Cojuangco (1987) 8 NSWLR 145 .......................................................... 7.610 John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 ........... 3.1080, 7.510, 7.530, 7.580, 7.600, 7.610 John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 ....................................................................... 3.790 John Fairfax & Sons Ltd v McRae (1955) 93 CLR 351 ................................... 6.40, 6.140, 6.220, 6.770 John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 ....... 5.50, 5.60, 5.100, 5.150, 5.160, 5.170, 5.220, 5.260, 5.310, 5.320, 5.340, 5.350, 6.90 John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 ................................................................. 3.1040 John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 .............. 5.60, 5.80, 5.100, 5.110, 5.120, 5.160, 5.250, 5.260, 5.280, 5.320, 5.340 John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 ............................................................................... 2.90, 3.990, 5.40, 5.60, , 6.7506.780 John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 ...... 5.50, 5.60, 5.100, 5.160, 5.170, 5.240, 5.370, 6.120, 6.790 John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 130 ALR 488 ...... 6.700, 6.730, 6.750, 6.780, 6.950, 8.120, 8.140 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 ............................... 3.140, 3.170, 3.340 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 ......................................... 3.1040 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 ....................................................... 3.710 John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 .................................................... 9.90 John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 ....................................... 6.780, 6.810 John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 ................................................. 3.450 xxviii

Table of Cases John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 ....................................................... 3.450 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 ............ 5.20, 5.40, 5.50, 5.170, 5.670 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 ...................................................... 3.700 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290 ................. 3.700 Johns v Australian Securities Commission (1992) 35 FCR 16 ......................... 6.80, 6.220, 6.280, 6.370 Johns v Australian Securities Commission (1993) 178 CLR 408 .............................................. 7.50, 8.70 Johnson, Re (1887) 20 QBD 68 ............................................................................................. 6.820, 6.920 Johnston v Cameron (2002) 195 ALR 300 ............................................................................. 5.120, 5.280 Johnstone v Australian Broadcasting Commission (1993) 113 FLR 307 .......................................... 3.320 Jones v Commonwealth (1966) 112 CLR 206 ................................................................................... 14.20 Jones v JB Lippincott Co 694 F Supp 1216 (1988) ........................................................................ 11.280 Jones v Scully (2002) 120 FCR 243 ........................................................................................ 9.50, 9.360 Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 ............. 3.90, 3.100, 3.300, 3.1130 Jones v Sutton (2004) 61 NSWLR 614 ........................................................................................... 3.1280 Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 ............................................................... 3.710 Jones v The Bible Believers Church [2007] FCA 55 ........................................................................... 9.70 Jones v Toben [2002] FCA 1150 .................................................................... 9.40, 9.50, 9.60, 9.70, 9.80 Jones v Trad [2011] NSWADTAP 19 ................... 9.40, 9.150, 9.220, 9.270, 9.290, 9.300, 9.320, 9.340 Jones v Trad (2013) 86 NSWLR 241 ..................................................... 9.40, 9.140, 9.150, 9.270, 9.340 Jones, Ex parte (1806) 13 Ves 237; 33 ER 283 ............................................................................... 6.140 Jones, Alleged Contempt of Court, Re [2013] EWHC 2579 ............................................................... 6.20 Joyce v Sengupta [1993] 1 All ER 897 ............................................................................................ 3.1460 Justice, Minister for v West Australian Newspapers Ltd [1970] WAR 202 ....................................... 6.760

K Kalaba v Commonwealth [2004] FCA 763 ......................................................................................... 8.650 Kamm v Channel Seven Sydney [2005] NSWSC 699 ...................................................................... 6.950 Kane v Quigley 203 NE 2d 338 (Ohio 1964) .................................................................................... 8.470 Kaye v Robertson (1991) 19 IPR 147; [1991] FSR 62 ...... 3.1460, 8.510, 8.550, 8.920, 8.1030, 8.1040 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 ....... 9.30, 9.90, 9.100, 9.110, 9.120, 9.130, 9.140, 9.180, 9.270, 9.290, 9.300 Keen Mar Corp v Labrador Park Shopping Centre Pty Ltd (1989) ATPR 46-048 ........................... 13.80 Keft v Fraser (unreported, WA Supreme Court (Full Court), 21 April 1985) .................................... 9.800 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 ......................................................... 3.170 Kelly-Country v Beers (2004) 181 FLR 352 ........................................... 9.80, 9.240, 9.290, 9.300, 9.320 Kemsley v Foot [1952] AC 345 ................................................................. 3.1130, 3.1150, 3.1160, 3.1170 Kennett v Farmer [1988] VR 991 ......................................................... 3.700, 3.880, 3.900, 3.910, 3.920 Kenrick & Co v Lawrence & Co (1890) 25 QBD 99 ......................................................................... 12.20 Kenyon v Eastwood (1888) 57 LJQB 455 ........................................................................................... 5.10 Kerr v O’Sullivan [1955] SASR 204 ................................................................................................... 6.260 Kerrisk v The North Queensland Newspaper Co Ltd [1992] 2 Qd R 398 ....................................... 7.580 Khan v Commissioner, Department of Corrective Services [2002] NSWADT 131 ............... 9.210, 9.220 Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 ...................................................................... 3.690 Khashoggi v Smith (1980) 124 Sol J 149 .......................................................................................... 7.360 Khorasandjian v Bush [1993] 3 WLR 476 ................................................................... 8.660, 8.830, 8.870 Kidman v Page [1959] Qd R 53 ......................................................................................................... 8.810 Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225 .......................................................................... 4.230 Kilbourn v Thompson 103 US 168 (1880) ......................................................................................... 4.230 King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 ......................................... 3.710 King v R (1876) 2 VLR 17 .................................................................................................. 3.1470, 3.1480 King v Sunday Newspapers Ltd [2011] NICA 8 ................................................................... 8.560, 8.1040 King-Ansell v Police [1979] 2 NZLR 531 ........................................................................................... 9.210 King and Mergen Holdings v McKenzie (1991) 24 NSWLR 305 .................................................... 3.1280 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408 ................... 3.300 xxix

Australian Media Law Kingswell v The Queen (1985) 159 CLR 264 ................................................................................... 6.100 Knupffer v London Express Newspaper Ltd [1944] AC 116 .................................................. 3.320, 3.410 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 ..................................................................... 11.20 Kondis v State Transport Authority (1994) 154 CLR 672 .................................................................. 11.20 Konskier v Goodman [1928] 1 KB 421 .............................................................................................. 8.700 Korczynski v Weslofts (Aust) Pty Ltd (1986) ATPR 40-643 ............................................................ 13.210 Kracke v Mental Health Review Board [2009] VCAT 646 ................................................................... 2.90 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 ........................... 3.130, 3.180, 3.440, 3.490 Kunhi v University of New England [2008] NSWADT 333 ................................................................ 9.210 Kuringai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134 .................................. 13.50 Kwok Fu Shing v Thang [1999] NSWSC 1034 ................................................................................. 7.130

L L v G [2002] DCR 234 ........................................................................................................................ 8.600 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 .................. 8.720 Lackey v Mae [2013] FMCAfam 284 ................................................................................................. 6.810 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 .......................... 12.70, 12.100 Lade v Black [2006] QCA 294 .............................................................................................................. 6.20 Laen Pty Ltd v At the Heads Pty Ltd [2011] VSC 315 ..................................................................... 5.780 Lake v King (1667) 1 Wms 131; 85 ER 128 ..................................................................................... 4.150 Lamb v Cotogno (1987) 164 CLR 1 ................................................................................................ 3.1340 Lane v Registrar of the Supreme Court of New South Wales (1981) 148 CLR 245 ...................... 6.140 Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 ........................................... 3.100, 3.670 Lange v Atkinson [2000] 3 NZLR 385 .................................................................................................. 2.90 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ...... 1.10, 2.90, 2.100, 3.860, 3.970, 3.990, 3.1000, 3.1010, 3.1100, 4.170, 5.40, 5.790, 6.780, 7.630, 9.30 Lange v Willis (1934) 52 CLR 637 ..................................................................................................... 3.970 Langer v Commonwealth (1996) 186 CLR 302 ....................................................................... 2.90, 5.790 Laurance v Katter (1996) 141 ALR 447 ................................................... 3.730, 4.80, 4.90, 4.130, 4.170 Law Institute of Victoria v Nagle [2005] VSC 35 ................................................................................. 6.20 Lawrie v NT News Services Pty Ltd (1985) 82 FLR 70 ................................................................. 3.1360 Lear v Malter (unreported, NSW Supreme Court, Donovan AJ, 14 March 1997) ......................... 3.1080 Lee v NSW Crime Commission (2013) 302 ALR 363 ......................................................................... 6.80 Lee v News Group Newspapers Ltd [2010] NIQB 106 ................................................................... 8.1040 Lee v Wilson (1934) 51 CLR 276 .................................................................. 3.290, 3.380, 3.390, 3.1250 Legal Practitioners Conduct Board v Viscariello (No 2) [2013] SASCFC 47 ................................... 5.470 Lemmon v Webb [1895] AC 1 ............................................................................................................ 8.880 Lend Lease (Millers Point) Pty Limited v Barangaroo Delivery Authority [2013] NSWSC 1848 ............................................................................................................................................... 5.440 Lennon v Newsgroup Newspapers Ltd [1978] FSR 573 ................................................................... 7.100 Lennox v Krantz (1978) 19 SASR 273 ............................................................................................ 3.1370 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 ........................................................... 3.820, 3.830 Lever v Murray (unreported, NSW Supreme Court, 5 December 1992) .......................................... 3.410 Levy v Victoria (1997) 189 CLR 579 ............................................................................. 2.90, 3.990, 5.790 Lew v Herald & Weekly Times Ltd [1999] 1 VR 313 ........................................................................ 7.580 Lew v Priester (No 2) [2012] VSC 153 .............................................................................................. 5.170 Lewin v McCreight 655 F Supp 282 (1987) ..................................................................................... 11.280 Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 ..................... 3.790, 3.960, 3.1000, 3.1170 Lewis v Daily Telegraph Ltd [1964] AC 234 ........................... 3.100, 3.120, 3.130, 3.280, 3.670, 3.1320 Lewis v Judge Ogden (1984) 153 CLR 682 ............................................................................ 6.20, 6.220 Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 ...................................................................... 3.700 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 ................................... 5.730, 5.780 Lincoln v Daniels [1962] 1 QB 237 .................................................................................................... 3.740 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 .................. 8.680, 8.730, 8.750, 8.760 Linter Group Ltd (in liq) v Price Waterhouse [2000] VSC 90 ........................................................... 5.675 Lion Laboratories Ltd v Evans [1984] 2 All ER 417 ................................................... 7.330, 7.340, 7.360 xxx

Table of Cases Literature Board of Review v Invincible Press [1955] St R Qd 525 ................................................. 9.540 Literature Board of Review v Kenmure Press Pty Ltd [1972] Qd R 346 .................. 9.540, 9.570, 9.580 Liu v The Age Company Ltd [2010] NSWSC 1176 ........................................................................... 7.540 Liu v The Age Company Ltd [2011] NSWSC 53 .................................................................... 7.540, 7.600 Liu v The Age Company Ltd [2012] NSWSC 12 ..................... 6.780, 7.540, 7.570, 7.590, 7.600, 7.620 Liverpool City Council v Palerma Pty Ltd [2008] NSWLEC 311 ....................................................... 7.450 Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) 223 ............................ 3.1510 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 ............................................................ 5.675 Lloyd v David Syme & Co Ltd [1986] AC 350 .................................................................................. 3.420 Lockwood v Commonwealth (1954) 90 CLR 177 ................................................................................ 6.80 London Artists Ltd v Littler [1969] 2 QB 375 ......................................................... 3.1160, 3.1170, 3.1240 London Association for the Protection of Trade v Greenslands Ltd [1916] 2 AC 15 ...................... 3.860 Lonrho, In re [1990] 2 AC 154 ........................................................................................................... 6.510 Lord Ashburton v Pape [1913] 2 Ch 469 ........................................................................................... 7.410 Lorigan v The Queen [2012] NZCA 264 ............................................................................................ 8.620 Loti Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 .............................................. 5.310, 5.675 Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 225 ALR 541 .................................... 6.20 Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783 ........................................................... 3.60 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 ......................... 3.860, 3.880, 3.920, 3.1290, 4.40 Lowe v Associated Newspapers Ltd [2007] QB 580 ....................................................................... 3.1130 Lucas-Box v News Group Newspapers [1986] 1 WLR 147 .............................................................. 3.690 Lyon v Daily Telegraph [1943] KB 746 ................................................................................ 3.1110, 3.1160 Lysaght v Edwards (1876) 2 Ch D 499 ........................................................................................... 15.260

M MIM Ltd v Pusey (1971) 125 CLR 383 ............................................................................................ 11.240 MacDougall v Knight (1886) 17 QBD 636 ......................................................................................... 3.830 MacDougall v Knight (1890) 25 QBD 1 ............................................................................................. 3.830 Mackay v Gordon & Gotch (Australasia) Ltd [1959] VR 420 ................................................ 9.540, 9.590 Mackinlay v Wiley [1971] WAR 3 ..................................................................... 9.540, 9.570, 9.610, 9.620 Macks, Re; Ex parte Saint (2000) 204 CLR 158 .............................................................................. 5.340 Macquarie Bank Ltd v Berg [1999] NSWSC 526 ............................................................................ 3.1370 Macquarie Media Holdings Ltd v Australian Communications and Media Authority (2009) 173 FCR 582 ................................................................................................................................. 15.90 Madden v Seafolly Pty Ltd [2014] FCAFC 30 ........................................................... 3.700, 3.880, 3.1170 Mafart v Television New Zealand Ltd (2006) 3 NZLR 18 ................................................................. 5.670 Maisel v Financial Times Ltd [1915] 3 KB 336 ................................................................................. 3.680 Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) ATPR 41-030 ................ 13.40 Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 ............................... 4.40, 4.100, 4.120 Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 ................ 7.240, 7.360 Malone v Laskey [1907] 2 KB 141 ..................................................................................................... 8.810 Mandla v Dowell Lee [1983] 1 All ER 1062 ............................................................... 9.190, 9.200, 9.230 Mann v O’Neill (1997) 191 CLR 204 ................................................................................................. 3.740 Mann, Re; Re King (1911) VLR 171 .................................................................................................. 5.840 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 .......................................................................... 3.40 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 ................................................... 11.90, 11.130 Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 465 ..................................... 8.250 Martin v The Queen [2010] VSCA 153 .............................................................................................. 6.790 Martin v Trustrum [2003] TASSC 50 ............................................................................. 5.80, 6.880, 6.920 Martin v Trustrum (No 3) [2003] TASSC 80 ...................................................................................... 6.950 Matthews v ASIC [2009] NSWCA 155 ................................................................................................. 6.20 Matthews v R (No 2) [2013] NSWCCA 194 ...................................................................................... 5.420 Matthews and Ford, Re [1973] VR 199 ............................................................................................. 5.820 Mawe v Pigott (1869) Ir 4 CL 54 ............................................................................................ 3.130, 3.180 Maxwell v Director of Public Prosecutions [1935] AC 309 ................................................................ 6.470 Maxwell v Pressdram Ltd [1987] 1 All ER 656 .................................................................................. 7.530 xxxi

Australian Media Law Maynes v Casey [2010] NSWDC 285 ................................................................................................ 8.650 Maynes v Casey [2011] NSWCA 156 ................................................................................................ 8.650 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 150 .......... 5.660, 5.730, 5.770 McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339 ......................................... 3.450, 3.670 McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286 ......................................... 2.90 McCollum v CBS Inc 249 Cal Rptr 187 (1988) ............................................................................... 11.310 McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 ............................................................. 3.430 McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 ............................................ 4.40, 5.670 McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62 ................................ 3.140, 8.990 McDonald’s System of Australia Pty Ltd v McWilliam’s Wines Pty Ltd (1979) 41 FLR 436 .................................................................................................................................. 13.170, 13.180 McGinty v Western Australia (1996) 134 ALR 289 .............................................................................. 2.90 McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 .............................................................. 2.90 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 ............................................ 6.80, 7.510, 7.580 McGuirk v University of NSW [2009] NSWSC 1058 .............................................................. 6.820, 6.930 McKennitt v Ash [2005] EWHC 3003 .................................................................................. 8.1040, 8.1050 McKennitt v Ash [2008] QB 73 .................................................................................. 8.560, 8.570, 8.1040 McKenzie v Magistrates’ Court (Vic) [2013] VSC 2 .......................................................................... 7.540 McKenzie v Magistrates’ Court (Vic) [2013] VSCA 81 ........................................................... 7.510, 7.540 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 ............................................... 7.40 McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611 ........................................................... 3.480 McLeod v St Aubyn [1899] AC 549 ................................................................. 6.140, 6.810, 6.820, 6.830 McLoughlin v O’Brian [1983] AC 410 ............................................................................................... 11.240 McManus and Harvey [2007] VCC 619 ............................................................................................. 7.560 McPherson v McPherson [1936] AC 177 .......................................................................... 5.10, 5.60, 5.80 Meckiff v Simpson [1968] VR 62 .......................................................................................................... 3.40 Medical Benefits Fund of Australia Ltd v Cassidy (2003) 135 FCR 1 .............................. 13.360, 13.370 Medical Board of South Australia v AYHT [2001] SADC 25 ............................................................. 5.470 Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 .......................... 5.160 Mees v Roads Corporation (2003) 128 FCR 418 ................................................. 4.30, 4.80, 4.90, 4.100 Melbourne University Student Union Inc (In Liq) v Ray [2006] VSC 205 ...... 6.140, 6.220, 6.530, 6.550 Melvin v Reid 112 CA 285 (1931) ...................................................................................................... 8.480 Meriton Apartments Pty Ltd v SBS Corp [2002] NSWSC 915 ....................................................... 3.1370 Merivale v Carson (1887) 20 QBD 275 ............................................................................................ 3.1160 Mersey Care NHS Trust v Ackroyd (No 2) [2007] EWCA Civ 101 ................................................... 7.660 Meskanas v ACP Publishing Pty Ltd (2006) 70 IPR 172 ................................................................ 12.190 Metropolitan International Schools Ltd v Designtechnica Corp [2009] EWHC 1765 ....................... 6.160 Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743 ....................... 3.560 Metz Holdings Pty Ltd v Simmac Pty Ltd (No 1) [2011] FCA 263 ................................................... 8.400 Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 ................... 3.120, 3.400 Miller v California 413 US 15 (1973) ...................................................................................... 9.590, 11.40 Miller v Fiona’s Clothes Horse of Centrepoint (1989) ATPR 40-963 .............................................. 13.250 Miller v Mieson (1991) Eq Opp Cases 92-341 .................................................................................. 9.190 Miller v Miller (1978) 141 CLR 269 ...................................................................................................... 8.80 Miller v National Broadcasting Co 187 Cal App 3d 1463 (Cal Ct App 1986) .................................. 8.470 Miller v TCN Channel Nine (1986) 161 CLR 556 ............................................................................... 2.90 Miller v TCN Channel Nine (1988) 36 A Crim R 92 .... 8.190, 8.200, 8.210, 8.230, 8.240, 8.250, 8.260, 8.270, 8.310, 8.320, 8.330, 8.350 Miller v Warner Bros 492 SE 2d 353 (1997) ................................................................................... 11.300 Miller v Wertheim [2002] FCAFC 156 ................................................................................................ 9.210 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 ......................................................................................................................................... 13.40 Mills v Townsville City Council (No 2) [2003] QPEC 18 ............................................ 6.820, 6.830, 6.880 Minarowska v The Queen (1995) 83 A Crim R 78 ............................................................................ 5.820 Minter v Priest [1930] AC 558 ............................................................................................................ 3.740 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 ............................................................ 3.1340 xxxii

Table of Cases Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 ........................................... 3.120, 3.280, 3.670 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 .......................................................................... 6.40 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 ................................... 3.140, 3.170 Mistral Inc v CBS 402 NYS 2d 815 (1978) ....................................................................................... 8.470 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 ........................................................... 3.710 Moage Ltd v Jagelman [2002] NSWSC 953 ...................................................................................... 5.780 Modbury Triangle v ANZIL (2000) 205 CLR 254 ............................................................................. 11.320 Monis v The Queen (2013) 249 CLR 92 ............................................................................................. 2.90 Monson v Tussauds Ltd [1894] 1 QB 671 ........................................................................................... 3.70 Moore v News of the World Ltd [1972] 1 QB 441 .......................................................................... 3.1290 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 .... 7.50, 8.710, 8.990, 12.60 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 ............................................................... 3.1370 More v Weaver [1928] 2 KB 520 ....................................................................................................... 3.740 Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 .............................................. 3.1060 Morgan v Lingen (1863) 8 LT 800 ..................................................................................................... 3.140 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 ................................................................ 3.120, 3.320 Morgan v Television New Zealand Ltd (unreported, New Zealand High Court, Holland J, 1 March 1990) ............................................................................................................................... 8.600 Moriarty v Brooks (1834) 6 C & P 684 .............................................................................................. 8.770 Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 198 LSJS 31 ........................................ 3.990 Moriarty and Wortley v Advertiser Newspapers Ltd [1998] SADC 3843 ........................................ 3.1000 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 .......................... 3.270, 3.280, 3.290 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 ........................... 3.870, 3.1080, 3.1280, 3.1360 Mosley v News Group Newspapers Ltd [2008] EWHC 1117 .......... 8.560, 8.570, 8.590, 8.1040, 8.1050 Mosley v United Kingdom [2011] ECHR 774 ..................................................................................... 8.570 Moss v Christchurch Rural District Council [1925] 2 KB 750 ........................................................... 8.860 Moti v R (2011) 245 CLR 456 .............................................................................................................. 5.20 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 .............................................................. 11.20, 11.70 Mowlds v Fergusson (1939) 40 SR (NSW) 311 .............................................................................. 3.1010 Mowlds v Fergusson (1946) 64 CLR 206 .......................................................................................... 3.880 Muir v Commissioner for Inland Revenue [2004] NZCA 277 ............................................................ 5.160 Mulholland v Australian Electoral Commission (2003) 128 FCR 523 ................................................. 2.90 Muller v Hatton [1952] St R Qd 150 .................................................................................................. 3.960 Mundey v Askin [1982] 2 NSWLR 369 ......................................................................... 3.210, 3.730, 4.80 Munro v Southern Dairies Ltd [1955] VLR 332 ................................................................................. 8.810 Murray v Express Newspapers Plc [2009] Ch 481 .............................................................. 8.560, 8.1040 Musgrave v Commonwealth (1937) 57 CLR 514 .............................................................................. 8.270 Mutch v Sleeman (1928) 29 SR (NSW) 125 ........................................................................ 3.1160, 8.980 Myerson v Smith’s Weekly Publishing Co (1923) 24 SR (NSW) 20 .............................................. 3.1130

N NAB v Serco [2014] EWHC 1225 ...................................................................................................... 5.670 NR v MR [2014] NZHC 863 ............................................................................................................... 8.610 NRMA v John Fairfax Publications Pty Ltd [2002] NSWSC 563 ............................... 7.590, 7.630, 7.650 NRMA Insurance Ltd v B&B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 ................................................................................................................................................. 8.660 NW Frozen Foods Pty Ltd v ACCC (1996) 71 FCR 285 ................................................................ 13.350 Nagle v Chulov [2001] NSWSC 9 ...................................................................................................... 7.590 Named Person v Vancouver Sun [2007] 3 SCR 253 .......................................................................... 5.20 Nanan v The State [1986] AC 860 ..................................................................................................... 5.820 National Australia Bank Ltd v Juric [2001] VSC 375 ........................................................................... 6.20 National Companies and Securities Commission v Brierley Investments Ltd (1988) 14 NSWLR 273 ................................................................................................................................. 15.220 National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 .................................................................................................................................... 3.1370, 6.280 xxxiii

Australian Media Law National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147 ............................................................................................................................................... 12.430 National Union of General & Municipal Workers v Gillian [1946] KB 81 ......................................... 3.530 Nationwide News Pty Ltd v Australian Broadcasting Corporation [2005] NSWSC 945 ....... 7.230, 7.410 Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399 ........................................ 12.120 Nationwide News Pty Ltd v District Court (NSW) (1996) 40 NSWLR 486 ...... 5.80, 5.260, 5.310, 5.320 Nationwide News Pty Ltd v Farquharson (2010) 28 VR 473 ......................... 5.210, 5.240, 6.220, 6.790 Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 ................................................................................................................................................... 3.990 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 ................................................................. 3.700 Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 .................................................................... 3.830 Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263 ..................................................................... 3.790 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 .... 2.90, 3.970, 6.810, 6.820, 6.830, 6.880, 6.930, 6.940 Neal v Sunday News Auckland Newspaper Publications (1985) Eq Opp Cases 92-130 .... 9.140, 9.180 Netcomm (Australia) Pty Ltd v Dataplex Pty Ltd (1988) 81 ALR 101 ............................................ 13.230 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 ........................ 12.120, 12.330 Nevill v Fine Art & General Insurance Co Ltd [1897] AC 68 ............................................................ 3.170 Neville v Lewis [1965] NSWR 1571 ................................................................................................... 9.540 New Brunswick Broadcasting v Nova Scotia (1993) 1 SCR 319 ....................................................... 4.20 New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300 .................................. 3.540 New South Wales Bar Association v Muirhead (1988) 14 NSWLR 173 ................................. 6.50, 6.950 New York Times v Sullivan 376 US 254 (1964) ........................................................... 2.80, 3.990, 11.40 Newman v Phillips Fox (a firm) (1999) 21 WAR 309 ........................................................................ 7.250 News Corp Ltd, Re (1987) 15 FCR 227 ............................................................................ 15.220, 15.260 News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248 ....... 5.160, 5.190, 5.200, 5.210, 5.290, 5.540, 6.160, 6.230, 6.790, 6.950 News Media Ownership Ltd v Finlay [1970] NZLR 1089 .................................................................. 3.960 Nguyen v The Magistrates’ Court of Victoria [1994] 1 VR 88 .......................................................... 5.590 Nicholls v Director of Public Prosecutions (1993) 61 SASR 31 ..................... 6.950, 7.510, 7.530, 7.540 Nichols v Simmonds and Royal Aero Club [1975] WAR 1 ............................................................. 11.280 Nine Network Australia Pty Ltd v Australian Broadcasting Authority (1997) 143 ALR 8 ............. 14.1230 Nixon v Warner Communications Inc 435 US 589 .............................................................................. 5.50 Norris v Gittos [2011] WASC 295 ..................................................................................................... 11.330 North Australian Aboriginal Legal Aid Service Inc v Bradley (2001) 188 ALR 312 ............. 6.530, 6.540, 6.550, 6.670, 6.710, 6.750 North Queensland Newspaper Co Ltd v Kendell (unreported, Qld Court of Appeal, 12 May 1994) .................................................................................................................................... 3.1340 Northern Land Council v Olney (1992) 34 FCR 470 ......................................................................... 9.230 Norton v Hoare (No 1) (1913) 17 CLR 310 ....................................................................................... 3.880 Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133 .............................. 7.590 Novotny v Cropley [2005] NSWCA 26 .................................................................................... 6.530, 6.550 Ntuli v Donald [2011] 1 WLR 294 ............................................................................. 8.560, 8.570, 8.1040 Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 ........................................................... 3.990

O O’Brien v Northern Territory [2002] NTSC 10 ...................................................................................... 5.60 O’Chee v Rowley (1997) 150 ALR 199 ......................................................................... 3.730, 4.90, 4.160 O’Connor v Waldron [1935] AC 76 ..................................................................................................... 3.740 O’Grady v Superior Court 139 Cal App 4th ....................................................................................... 7.520 O’Malley v Elder (1876) 2 VLR (L) 39 ............................................................................................... 3.130 O’Shane v Burwood Local Court [2007] NSWSC 1300 .................................................................... 5.120 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 ....................................... 3.1130, 3.1150 O’Sullivan v Truth and Sportman Ltd (1957) 96 CLR 220 ................................................................ 8.280 Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 .................................................. 3.140, 8.990 xxxiv

Table of Cases Obsidian Finance Group, LCC v Cox (Nos. 12-35238 & 35319 (9th Cir. 17 January 2014) .............................................................................................................................................. 7.520 Office of Government Commerce v Information Commissioner [2008] EWHC 737 ........................... 4.80 Office of Government Commerce v Information Commissioner [2010] QB 98 .................................. 4.20 Ogle v Strickland (1987) 13 FCR 306 ............................................................................................... 9.440 Olivia N v NBC 126 Cal App 3d 488 (Cal CA 1981) ...................................................................... 11.300 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 .................................................................................................... 3.1460 Orr v Isles [1965] NSWR 677 .......................................................................................................... 3.1310 Othman v English National Resistance [2013] EHWC 1421 ............................................................. 8.560 Owen v Menzies [2013] 2 Qd R 327 ........................................................................................ 9.30, 9.520 O’Chee v Rowley (1995) 150 ALR 199 ............................................................................................. 4.150 O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 .............................................................. 3.990

P P v Australian Crime Commission [2008] FCA 1336 ......................................................................... 5.120 P v D [2000] 2 NZLR 591 .................................................................................................................. 8.600 P v D1 (No 3) [2010] NSWSC 644 ...................................................................................................... 5.60 PPP v QQQ as Representative of the Estate of RRR [2011] VSC 186 ................................. 5.50, 5.120 Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation (1970) 121 CLR 154 ............................................................................................................................................... 12.230 Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 .............................................. 3.1340 Packer v Peacock (1912) 13 CLR 577 ....................................................................... 6.180, 6.230, 6.760 Packer v Police [2007] SASC 98 ....................................................................................................... 5.470 Palkowski v Ivancic (2009) ONCA 705 ................................................................................................ 5.10 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 ................................................... 3.1460 Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 ..................................................... 3.1360 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 .......................................................................... 6.20 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ................... 13.60, 13.70 Parmiter v Coupland (1840) 6 M & W 105 ........................................................................................ 3.140 Peach v Toohey [2003] NTSA 57 ....................................................................................................... 8.800 Peck v United Kingdom (2003) 36 EHRR 41 .................................................................................. 8.1040 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 ........... 3.580, 3.590, 3.600, 3.610, 3.620, 11.60 Peebles v Honourable Tony Burke [2010] FCA 838 .......................................................................... 4.620 Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 ................. 3.990, 8.1050 Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 ...................................................... 10.20 Peerless Bakery v Watts [1955] NZLR 339 ....................................................................................... 3.750 Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 ..................... 5.250, 5.340, 6.20 Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 ........... 9.370, 9.440, 9.450, 9.540, 9.590 Pennekamp v Florida 328 US 331 (1946) .............................................................................. 6.260, 6.940 Penton v Calwell (1945) 70 CLR 219 .................................................... 3.880, 3.890, 3.900, 3.960, 4.40 Pepper v Hart [1993] AC 593 ..................................................................................................... 4.30, 4.80 Perera v Peiris [1949] AC 1 ............................................................................................................... 3.860 Perez v Fernandez (2012) 260 FLR 1 ............................................................................................. 12.190 Perre v Apand Pty Ltd (1999) 198 CLR 180 ..................................................................................... 11.80 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 ............... 3.1130, 3.1150, 3.1170, 3.1190 Peters v Cushing [1999] NZAR 241 ................................................................................................... 4.100 Peters v Television New Zealand (TVNZ) [2012] 2 NZLR 466 ......................................................... 3.820 Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 .......................................................... 3.990 Philip Morris Ltd and British American Tobacco Australia Ltd and Department of Health and Aging [2011] AATA 215 ............................................................................................................ 4.80 Phillips v Police (1994) 75 A Crim R 480 .......................................................................................... 9.540 xxxv

Australian Media Law Phonographic Performance Co of Australia Ltd v Commercial Radio Australia Ltd (2013) 209 FCR 331; [2013] FCAFC 11 .................................................................................................. 14.50 Pickering v Liverpool Daily Post & Echo Newspapers Plc [1991] 2 AC 370 ................................... 6.560 Pickin v British Railways Board [1974] AC 765 ................................................................................... 4.20 Pico Holdings Inc v Voss [2002] VSC 319 .......................................................................................... 6.20 Pierce v United States 252 US 239 (1920) ......................................................................................... 2.80 Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 .................................................................. 3.1090 Plato Films Ltd v Speidel [1961] AC 1090 ........................................................................... 3.710, 3.1360 Platt v Nutt (1988) 12 NSWLR 231 ................................................................................................... 8.650 Plenty v Dillon (1991) 171 CLR 635 .................................................................................................. 8.730 Police v Campbell [2010] 1 NZLR 483 .............................................................................................. 7.670 Police (NSW), Commissioner of v Mooney (No 3) [2004] NSWADTAP 22 ..................................... 9.360 Police (NSW), Commissioner of v Nationwide News Pty Ltd (2008) 70 NSWLR 643 .......... 5.60, 5.160 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 ....................................................................... 3.690 Polyukhovich v Commonwealth (1991) 172 CLR 501 ....................................................................... 6.780 Popovic v Herald & Weekly Times Ltd [2002] VSC 174 ..................................................................... 2.90 Popow v Samuels (1973) 4 SASR 594 ........................................................... 9.540, 9.570, 9.600, 9.630 Portillo, Re [1997] 2 VR 723 .............................................................................................................. 5.830 Potts v Moran (1976) 16 SASR 284 .................................................................................................. 3.690 Power, Ex Parte; Re Devereaux (1957) SR (NSW) 253 ..................................................................... 6.40 Prebble v Television New Zealand Ltd [1995] 1 AC 321 ................. 3.730, 4.30, 4.40, 4.80, 4.90, 4.140 Prichard v Krantz (1984) 37 SASR 379 ................................................................................... 3.90, 3.120 Prime Finance Pty Ltd v Randall [2009] NSWSC 361 ...................................................................... 5.750 Prince Albert v Strange (1849) 1 Mac & G 25; 41 ER 1171 ................................................ 7.240, 7.330 Prince Jefri Bokiah KPMG (a firm) [1999] 2 AC 222 ........................................................................ 7.250 Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 ................................................ 8.1040 Prior v Lansdowne Press Pty Ltd [1977] VR 65 ............................................................................. 12.180 Proceeding No 1496 of 1956, In the Matter of [2010] VSC 192 ...................................................... 5.675 Proceeding No 291 of 1944, In the Matter of [2006] VSC 50 .......................................................... 5.675 Progressive Enterprises Ltd v North Shore City Council [2006] 2 NZLR 262 ................................. 6.550 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 ........... 14.1040, 14.1100 Prothonotary v Collins (1985) 2 NSWLR 549 ......................................................................... 6.110, 6.140 Prothonotary of the Supreme Court of New South Wales v Katelaris [2008] NSWSC 389 ............. 6.90, 6.820, 6.920 Prothonotary of the Supreme Court of New South Wales v Rakete [2010] NSWSC 5 ....... 5.610, 5.620 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] WLR 756; 3 All ER 878 ............ 5.730, 5.780 Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 ............................... 5.660 Pullman v Walter Hill and Co Ltd [1891] 1 QB 524 .......................................................................... 3.440 Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1980) 31 ALR 73 ................................... 13.70

Q Queensland Law Society Incorporated, Ex parte [1984] 1 Qd R 166 .................................... 5.60, 5.170 Quilty v Windsor (1999) SLT 346 ....................................................................................................... 3.170

R R R R R R R R

v A [2008] VSC 73 .......................................................................................................................... 5.190 v Almon (1765) Wilm 243; 97 ER 94 ................................................................................. 6.100, 6.810 v Armstrong [1922] 2 KB 555 ............................................................................................. 5.810, 5.820 v Arrowsmith [1950] VLR 78 ................................................................................................. 6.50, 6.560 v Australian Broadcasting Corporation [1983] Tas R 161 ...................................... 6.390, 6.610, 6.630 v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 ............................. 15.260 v Avent (unreported, Vic Court of Appeal of Supreme Court, Phillips CJ, Callaway JA and McDonald, JA, 22 December 1995) ...................................................................................... 5.620 R v Barrass (unreported, WA Court of Petty Sessions, No 27602 of 1989) ................................... 7.550 R v Barrass (unreported, WA District Court, Kennedy J, 7 August 1990) ....................................... 7.550 R v Benbrika [2009] VSC 142 ............................................................................................................ 6.790 xxxvi

Table of Cases R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v v v v v v v v

Bossone (unreported, Qld Supreme Court, 18 September 1930) ............................................. 10.60 Brett [1950] VLR 226 ................................................................................................................... 6.890 Brislan; Ex parte Williams (1935) 54 CLR 262 .......................................................................... 14.20 Budd (unreported, Qld Supreme Court, Dowsett J, 20 March 1993) ........................................ 7.540 Cameron [1966] 4 Can Crim Cas 273 ........................................................................................ 9.570 Castro, Onslow & Whalley’s Case (1873) LR 9 QB 219 ........................................................... 6.320 Chaytor [2011] 1 AC 684 ................................................................... 4.20, 4.30, 4.140, 4.150, 4.220 Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 ...... 9.370, 9.420, 9.430, 10.40, 10.50, 10.80 v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 ............................................................................................................................... 5.70, 15.480 v Clarke; Ex parte Crippen (1910) 103 LT 636 ............................................................................. 6.180 v Clement (1821) 4 B & Ald 218; 106 ER 918 ............................................................................. 5.160 v Clerk of Petty Sessions, Court of Petty Sessions Hobart; Ex parte Davies Brothers Ltd (1998) 8 Tas R 283 ....................................................................................................... 5.50, 5.670 v Close [1948] VLR 445 ............................................................................... 9.540, 9.560, 9.570, 9.820 v Commissioner of Police of the Metropolis; Ex parte Blackburn (No 2) [1968] 2 QB 150 ...................................................................................................................................... 6.810, 6.830 v Condello (No 2) [2006] VSC 27 .................................................................................................. 5.170 v Coutts [2013] SADC 50 ............................................................................................................... 8.270 v Cowan [2014] QSC 41 ................................................................................................................ 5.620 v Creevey (1813) 1 M&S 273; 105 ER 102 .................................................................................. 4.100 v Crowther-Wilkinson [2004] NSWCCA 249 ................................................................................... 6.230 v Curll (1727) 2 St R 788; 93 ER 849 .......................................................................................... 9.530 v Curran & Torney [1983] 2 VR 133 .............................................................................................. 8.110 v David Syme & Co Ltd [1982] VR 173 ........................................................ 6.70, 6.220, 6.950, 6.960 v Davis (1995) 57 FCR 512 .................................................................................................... 5.20, 5.30 v Day & Thomson [1985] VR 261 ...................................................................................... 6.450, 6.760 v Denbigh Justices; Ex parte Williams [1974] 1 QB 759 ...................................................... 5.30, 5.60 v Duffy; Ex parte Nash [1960] 2 QB 188 ........................................................................... 6.260, 6.270 v Dunbabin; Ex parte Williams (1935) 53 CLR 434 .............. 6.90, 6.810, 6.820, 6.830, 6.850, 6.890, 6.920 v Dyson (1944) 29 Cr App R 104 .................................................................................................. 6.230 v Edelsten (1990) 21 NSWLR 542 ................................................................................................... 8.80 v Editor of New Statesman; Ex parte Director of Public Prosecutions (1928) 44 TLR 301 ................................................................................................................................................. 6.820 v Editor of the Daily Mail; Ex parte Factor (1928) 44 TLR 303 ................................................... 6.770 v Emmett; R v Masland (1988) 14 NSWLR 327 ........................................................................... 5.820 v Enson (1887) 3 TLR 366 ........................................................................................................... 3.1470 v Evans (1999) 152 FLR 352 ........................................................................................................... 8.80 v Evening News; Ex parte Hobbs [1925] 2 KB 158 ...................................................................... 6.760 v Evening Standard Co Ltd; Ex parte Attorney-General [1954] 1 QB 578 .................................... 6.70 v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 .................................. 6.100 v Felixstowe Justices; Ex parte Leigh [1987] 1 QB 582 ....................................................... 5.10, 5.30 v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227 ................................................................................................................................................. 6.120 v Fletcher; Ex parte Kisch (1935) 52 CLR 248 ................................................................... 6.90, 6.930 v Forbes; Ex parte Bevan (1972) 127 CLR 1 ................................................................................. 6.40 v Fowler [1905] 1 Tas LR 53 .............................................................................................. 6.810, 6.920 v Freeman [2011] VSC 139 ............................................................................................................ 5.600 v General Television Corporation Pty Ltd [2009] VSC 84 ............................................................. 6.960 v Glennon (1992) 173 CLR 592 .............................................................................. 6.120, 6.220, 6.230 v Governor of Lewes Prison; Ex parte Doyle [1917] 2 KB 254 ..................................................... 5.60 v Gray (1865) 10 Cox CC 184 ....................................................................................................... 6.760 v Gray (1900) 82 LTR 534; [1900] 2 QB 36 ............................................... 6.810, 6.830, 6.850, 6.960 v Griffiths; Ex parte Attorney-General [1957] 2 QB 192 ...................................................... 6.70, 6.150 xxxvii

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v Hamilton (1930) 30 SR (NSW) 277 .............................................................................................. 5.80 v Hanson; R v Ettridge [2003] QCA 488 ....................................................................................... 6.270 v Hardy [1951] VLR 454 ............................................................................................................... 3.1470 v Harwood [2012] EW Misc 27 ...................................................................................................... 6.160 v Haydon (No 1) [2004] SASC 437 ............................................................................................... 6.280 v Hepburn (1889) 15 VLR 84 ....................................................................................................... 3.1470 v Herald & Weekly Times Ltd (unreported, Vic Supreme Court, Harper J, 15 April 1996) .............................................................................................................................................. 6.960 v Herald & Weekly Times Ltd [1999] VSC 432 ............................................................................. 6.270 v Herald & Weekly Times Ltd [2006] VSC 94 ................................................................... 6.260, 6.270 v Herald & Weekly Times Ltd (2007) 19 VR 248; [2007] VSC 482 ...................... 6.180, 6.690, 6.760 v Herald & Weekly Times Ltd [2008] VSC 251 ...................................................... 6.310, 6.950, 6.960 v Herald & Weekly Times Ltd [2009] VSC 85 ............................................................................... 6.960 v Herring [1998] NSWSC 551 ............................................................................................. 5.820, 5.830 v Hicklin (1868) LR 3 QB 360 ........................................................................................................ 9.530 v Hinch [2013] VSC 520 .............................................. 5.370, 6.90, 6.160, 6.650, 6.690, 6.750, 6.790 v Hinch (No 2) [2013] VSC 554 ..................................................................................................... 6.960 v His Honour Judge Noud; Ex parte MacNamara [1991] 2 Qd R 86 .......................................... 5.370 v Holbrook (1878) 4 QBD 42 ....................................................................................................... 3.1470 v Hoser & Kotabi Pty Ltd [2001] VSC 443 ........................... 6.810, 6.820, 6.830, 6.890, 6.930, 6.940 v Jackson (1987) 8 NSWLR 116 ...................................................................................................... 4.80 v Jamal (2008) 72 NSWLR 258 .......................................................................................... 5.290, 6.120 v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 ................................................ 5.830, 6.230, 6.790 v Karakaya [2005] Cr App R 5 ........................................................................................... 5.210, 6.800 v Kelly [2006] VSCA 221 ................................................................................................................ 7.560 v Khazaal (2012) 246 CLR 601 ...................................................................................... 10.120, 10.130 v Kopyto (1987) 39 CCC (3d) 1 ......................................................................................... 6.830, 6.940 v Kopyto (1987) 47 DLR (4th) 213 ................................................................................................ 6.940 v Kray (1969) 53 Cr App R 412 ......................................................................................... 6.280, 6.760 v Kwok (2005) 64 NSWLR 335 ...................................................................................................... 5.120 v Laws (2000) 50 NSWLR 96; [2000] NSWSC 880 ..................................................................... 5.830 v Laws (2000) 116 A Crim R 70; [2000] NSWSC 885 .................................................................. 5.830 v Le (2004) 60 NSWLR 108 ............................................................................................... 8.250, 8.270 v Legal Aid Board; Ex parte Kaim Todner [1999] 3 WLR 925; QB 966 ................... 5.20, 5.80, 5.180 v Lemon [1979] AC 617 ............................................................................... 9.370, 9.380, 9.390, 9.440 v Lewis [2001] EWCA Crim 749 ..................................................................................................... 5.820 v Liddy [2010] SADC 80 ................................................................................................................. 6.120 v Lodhi (2006) 65 NSWLR 573 ............................................................................................ 5.80, 5.570 v Lodhi [2006] NSWSC 571 .................................................................................................. 5.40, 5.570 v Lodhi [2006] NSWSC 596 ............................................................................................................. 5.60 v Long (2003) 138 A Crim R 103 ................................................................................................... 6.230 v Lord Abingdon (1795) 1 Esp 226; 170 ER 337 ......................................................................... 4.100 v Lovitt [2003] QSC 279 ................................................................................................................. 6.150 v Mahanga [2001] 1 NZLR 641 ...................................................................................................... 5.670 v Mamabolo 2001 (3) SA 409 ........................................................................................................ 6.940 v McCann (1991) 92 Cr App R 239 ............................................................................................... 6.230 v McInroy (1915) 26 DLR 615 ........................................................................................................ 6.260 v McLachlan [2000] VSC 215 ......................................................................................................... 6.230 v McManus and Harvey [2007] VCC 619 ............................................................... 7.510, 7.540, 7.560 v Metal Trades Employers’ Association; Ex Parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 .......................................................................................... 6.40 v Miah [1997] 2 Cr App R 12 ......................................................................................................... 5.820 v Migliorini (1981) 53 FLR 221 ....................................................................................................... 8.100 v Mirza [2004] 1 AC 1118 ................................................................................................... 5.810, 5.820 v Mokbel (2009) 26 VR 618 ........................................................................................................... 6.120 v Munro [1912] QWN 21 ................................................................................................................ 10.60

xxxviii

Table of Cases R v Murphy (1986) 5 NSWLR 18 .................................................................................... 4.80, 4.90, 4.240 R v Nationwide News Pty Ltd (1997) 94 A Crim R 57 ..................................................................... 6.730 R v Nationwide News Pty Ltd (unreported, Vic Supreme Court, Gillard J, 18 February 1998) .............................................................................................................................................. 6.960 R v Nationwide News Pty Ltd and Queensland Newspapers Pty Ltd (2008) 22 VR 116; [2008] VSC 526 .................................................................................................................. 5.380, 5.500 R v Nicholls (1911) 12 CLR 280 ........................................................................................................ 6.930 R v Odhams Press Ltd [1957] 1 QB 73 ................................................................................... 6.70, 6.140 R v Olden [2001] VSC 80 ....................................................................................................... 6.230, 6.280 R v Oliver (1984) 57 ALR 543 ............................................................................................................ 8.110 R v O’Brien [2014] UKSC 23 ............................................................................................................... 6.20 R v Pacini [1956] VLR 544 .......................................................................................... 6.610, 6.230, 6.700 R v Pan [2001] SCR 344 ................................................................................................................... 5.820 R v Papadopoulos [1979] 1 NZLR 621 .............................................................................................. 5.810 R v Parke [1903] 2 KB 432 ..................................................................................................... 6.110, 6.200 R v Paterson (unreported, Qld Supreme Court, 15 April 1930) ....................................................... 10.60 R v Pearce (1992) 7 WAR 395 ................................................. 6.110, 6.140, 6.230, 6.320, 6.330, 6.760 R v Perish [2011] NSWSC 1102 ................................................................................. 5.250, 5.290, 6.230 R v Pitt and R v Mead (1762) 3 Burr 1335; 97 ER 861 .................................................................. 4.220 R v Pomeroy; The Herald & Weekly Times Ltd [2002] VSC 178 ............................. 5.170, 5.380, 5.530 R v Portillo [1997] 2 VR 723 .............................................................................................................. 5.820 R v Qureshi [2002] 1 WLR 518 ......................................................................................................... 5.820 R v Ramsay and Foote (1883) 15 Cox CC 23 ................................................................................. 9.370 R v Regal Press Pty Ltd [1972] VR 67 ............................................................................................. 6.260 R v Rich (Ruling No 7) [2008] VSC 437 ........................................................................................... 5.290 R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 ......... 4.20, 4.80, 4.210, 4.240, 4.410 R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 171 ................................................... 4.410 R v Rinaldi (1993) 30 NSWLR 605 ........................................................................................ 5.820, 5.830 R v Rintoull [2010] VSC 30 ................................................................................................................ 5.530 R v Rule (1937) 2 KB 375 ................................................................................................................. 4.150 R v Saxon, Hadfield & Western Mail Ltd [1984] WAR 283 .............................. 6.70, 6.230, 6.360, 6.700 R v Scaf [2004] 60 NSWLR 86 .......................................................................................................... 5.820 R v Scott & Downland Publications Ltd [1972] VR 663 ........................................................ 6.220, 6.760 R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 ............. 4.80 R v Sharkey (1949) 79 CLR 121 ....................................................................................................... 10.60 R v Sharp (1964) 82 WN (Pt 1) (NSW) 129 .......................................................................... 9.570, 9.610 R v Skaf (2004) 60 NSWLR 86 ......................................................................................................... 5.810 R v Smith [2005] 2 All ER 29 ............................................................................................................. 5.820 R v Socialist Worker Printers and Publishers Ltd; Ex parte Attorney-General [1975] 1 QB 637 ............................................................................................................................ 5.90, 5.120, 5.350 R v Spectator Staff Pty Ltd [1999] VSC 107 ................................................................ 6.70, 6.950, 6.960 R v Stanley [1965] 2 QB 327 ............................................................................................................. 9.540 R v Sullivan (1868) 11 Cox CC 44 .................................................................................................... 10.40 R v Sun Newspapers Pty Ltd (1992) 58 A Crim R 281 ................................. 6.100, 6.240, 6.730, 6.760 R v Tait (1979) 46 FLR 386 ..................................................................................... 5.10, 5.20, 5.80, 5.90 R v Tayyab Sheikh [2004] NSWCCA 38 ................................................................................ 6.230, 6.760 R v The Age Company Ltd [2000] TASSC 62 ................................................................................... 5.570 R v The Age Company Ltd [2006] VSC 479 ......................................................................... 6.470, 6.680 R v The Age Company Ltd [2008] VSC 305 ......................................................................... 6.140, 6.310 R v Theophanous [2003] VSCA 78 ................................................................................. 4.30, 4.90, 4.130 R v Thomson Newspapers Ltd; Ex parte Attorney-General [1968] 1 All ER 268 .................. 6.70, 6.370 R v Tibbits [1902] 1 KB 77 ................................................................................................................. 6.100 R v Trustrum [2005] TASSC 88 .......................................................................................................... 6.920 R v Truth Newspaper (unreported, Vic Supreme Court, Phillips J, 16 December 1993) ..... 6.440, 6.960 R v Vollmer [1996] 1 VR 95 ............................................................................................................... 6.120 R v Von Einem (1991) 55 SASR 199 .................................................................................................. 6.90 xxxix

Australian Media Law R v Wampfler (1987) 11 NSWLR 541 .................................................................................... 9.800, 9.810 R v Wells Street Stipendiary Magistrate; Ex parte Deakin [1980] AC 477 .................................... 3.1470 R v West Australian Newspaper Holdings Ltd; Ex parte Director of Public Prosecutions (WA) (1996) 16 WAR 518 ...................................................................................... 6.140, 6.220, 6.730 R v White (2007) 17 VR 308 ............................................................................................................. 5.280 R v Wicks [1936] 1 All ER 384 ........................................................................................................ 3.1470 R v Williams [2007] VSC 139 ................................................................................................. 5.610, 5.620 R v Williams; In the matter of an application by “The Age” [2004] VSC 413 .................................. 5.160 R v Workman (2004) 60 NSWLR 471 ...................................................................................... 8.80, 8.110 R v Young [1995] QB 324 .................................................................................................................. 5.820 R v Zorad (1990) 19 NSWLR 91 ....................................................................................................... 6.180 R, Guardian News & Media Ltd v City of Westminster Magistrates Court [2012] EWCA (Civ) 420 ..................................................................................... 5.20, 5.40, 5.50, 5.660, 5.670, 5.675 R (Cth) v Elomar (No 3) [2008] NSWSC 1443 ...................................................................... 5.670, 5.675 R (on application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 .................................................................................................................................... 9.390, 9.400 R (on application of London Christian Radio Ltd) v Radio Advertising Clearance Centre; Secretary of State for Culture, Media and Sport [2013] EWCA Civ 1495; [2014] 1 WLR 307 ........................................................................................................................................ 4.600 R (on application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] 3 WLR 554 ...................................................................................................... 5.10, 5.20 R Lucas & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289 ........................................... 5.50, 5.670 RAV v St Paul 120 L Ed 2d 305 (1992) .............................................................................................. 2.80 RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 18 ............................ 14.200 RJ v JC [2008] NSWDC 217 .............................................................................................................. 3.210 RJR-McDonald Inc v Attorney-General of Canada (unreported, Supreme Court of Canada, 21 September 1995) ..................................................................................................... 13.480 RJW and SJW v Guardian News and Media Ltd Claim No HQ09X04132 ........................................ 4.50 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 ....................................................................... 3.300 Raciti v Hughes (1995) 7 BPR 14,837 ................................................................................... 8.840, 8.870 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 ......... 3.130, 3.140, 3.170, 3.340, 8.980 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 ............................................... 3.220, 3.920 Rana v Google Australia Pty Ltd [2013] FCA 60 ............................................................................... 6.160 Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 ...................................................... 3.110 Rann v Olsen (2000) 76 SASR 450 ...................... 3.730, 4.80, 4.90, 4.100, 4.130, 4.140, 4.170, 4.240 Ratcliffe v Evans [1892] 2 QB 524 ................................................................................................... 3.1460 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 ............... 5.10, 5.60, 5.80, 5.160, 5.170, 5.180, 5.380, 5.440 Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 ...................................................... 3.180 Redrock Holdings Pty Ltd v Hinkley (2001) 50 IPR 565 ................................................................ 12.220 Regina v Malik [1968] 1 WLR 353 ..................................................................................................... 9.230 Registrar v Nationwide News Ltd [2004] SASC 223 ......................................................................... 5.380 Registrar, The v Unnamed Respondent (1994) 234 FLR 248 .......................................................... 5.610 Registrar, Court of Appeal v Collins [1982] 1 NSWLR 682 ................................................... 6.140, 6.750 Registrar, Court of Appeal v John Fairfax Group Pty Ltd (unreported, NSW Court of Appeal, 21 April 1993) ..................................................................................................................... 6.70 Registrar, Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 .............................................. 6.960 Registrar, Court of Appeal v Willesee (1985) 3 NSWLR 650 .... 6.90, 6.140, 6.230, 6.710, 6.950, 6.960 Registrar, Supreme Court of South Australia v Channel 9 SA Pty Ltd [2001] SASC 3 .................. 6.960 Registrar, Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129 ................................... 5.380 Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 ........................................................ 6.140 Registrar, Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 ..................... 3.990 Reid v Howard (1993) 31 NSWLR 298 ............................................................................................. 7.450 Reid v Howard (1995) 184 CLR 1 ..................................................................................................... 5.160 xl

Table of Cases Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 ........................ 3.1160, 3.1170 Resolute Ltd v Warnes [2000] WASCA 359 ........................................................................... 6.530, 6.550 Rex v Tutchin (1704) 14 Howell’s State Trials 1095 ........................................................................... 2.20 Reynolds v Godlee (1858) 4 K & J 88 .............................................................................................. 5.730 Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 .................................................................... 2.90 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 ............................... 3.1020, 3.1080, 8.590, 8.1050 Rice v Paladin Enterprises 940 F Supp 836 (D Md 1996) ............................................................. 11.280 Richardson v Hastings (1844) 7 Beav 301 ........................................................................................ 5.730 Richmond Newspapers Inc v Virginia 448 US 555 ............................................................................. 5.20 Riddick v Thames Board Mills Ltd [1977] QB 881 ............................................................................ 5.730 Ridge v Baldwin [1964] AC 40 ............................................................................................................. 8.10 Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 ............................................................. 3.1360 Riley v Triplex Communications Inc 874 SW 2d 333 (Tex 1994) ................................................... 11.110 Rindos v Hardwick (unreported, WA Supreme Court, Ipp J, 31 March 1994) ................................. 3.440 Rinehart v Welker [2011] NSWCA 345 ................................................................................... 5.420, 5.430 Rinehart v Welker [2011] NSWCA 403 ...... 5.60, 5.80, 5.160, 5.240, 5.250, 5.420, 5.430, 5.440, 5.660, 5.670 Rinehart v Welker [2012] HCATrans 57 ............................................................................................. 5.430 Rinehart v Welker (No 2) [2011] NSWSC 1238 ................................................................................ 5.430 Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports 81-231 ............ 8.680, 8.760 Risenhoover v England 936 F Supp 392 (USDC 1996) ................................................................. 11.160 Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 ......................................... 3.170 Roads & Traffic Authority (NSW) v Australian National Car Parks Pty Ltd [2007] NSWCA 114 .................................................................................................................................................. 7.600 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 ............................................................... 12.390 Roadshow Films Pty Ltd v iiNet Ltd (No 3) [2010] FCA 24 ............................................................. 5.640 Roberts v Bass (2002) 212 CLR 1 .................................................................. 2.90, 3.960, 3.1460, 4.630 Roberts v Nine Network Australia Pty Ltd (Unreported ......................................................... 5.610, 5.620 Robertson v Dogz Online Pty Ltd [2010] QCA 295 ........................................................................... 3.560 Robertson v Samuels (1973) 4 SASR 465 ................................................................. 9.540, 9.560, 9.570 Robertson v Swincer (1989) 52 SASR 356 ...................................................................................... 11.110 Robinson v Laws [2003] 1 Qd R 81 .................................................................................................. 3.700 Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 ...................................................................... 3.280 Rockett v Smith; Ex parte Smith [1992] 1 Qd R 660 .......................... 5.100, 5.110, 5.120, 5.150, 5.160 RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 ................................. 8.560, 8.570, 8.1040 Rodrigues v Ufton (1894) 20 VLR 539 .............................................................................................. 8.660 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 ................................................. 3.1320, 3.1330 Rogers v Television New Zealand Ltd [2008] 2 NZLR 277 ................................................. 8.610, 8.1040 Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1972) 23 DLR (3d) 292 ............................... 4.150 Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1973) 36 DLR (3d) 413 ............................... 4.150 Romeyko v Samuels (1972) 2 SASR 529; 19 FLR 322 ................................. 9.540, 9.570, 9.590, 9.600 Ronald v Harper [1913] VLR 311 ....................................................................................................... 3.740 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1990] 2 NSWLR 845 ............. 3.280 Rothmans of Pall Mall (Aust) Ltd v Australian Broadcasting Tribunal (1985) 5 FCR 330 ........... 13.460, 13.480 Rowan v Cornwall (No 5) (2002) 82 SASR 152 ...................................................................... 4.80, 4.140 Rowe v Silverstein [2009] VSC 157 ................................................................................................... 5.750 Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431 .................... 3.740 Rugby Football Union v Consolidated Information Services Ltd [2012] 1 WLR 3333 ..................... 7.590 Russell v Russell (1976) 134 CLR 495 ................................................................... 5.10, 5.20, 5.40, 5.50 Russo v Russo [2010] VSC 98 .......................................................................................................... 5.670

S S v State of New South Wales [2009] NSWCA 164 ......................................................................... 11.20 S (A Child) (Identification: Restrictions on Publication), In Re [2005] 1 AC 593 .................... 5.20, 8.570 xli

Australian Media Law SAT FM Pty Ltd v Australian Broadcasting Authority [1997] FCA 647 ........................................... 14.200 SG v DPP [2003] NSWSC 413 .......................................................................................................... 5.160 Saad v Chubb Security Pty Ltd (No 2) [2012] NSWSC 1183 .......................................................... 8.960 St James’s Evening Post Case: Roach v Garvan (1742) 2 Atk 469; 26 ER 683 ................ 6.140, 6.810 Sakon v Pepsico Inc 553 So 2d 163 (Fla 1989) ............................................................................. 11.290 Saltalamacchia v Parsons [1999] VSC 430 ....................................................................................... 6.820 Saltalamacchia v Parsons [2000] VSCA 83 ................................................................ 6.650, 6.810, 6.880 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 ............. 7.80, 7.220, 7.230 Sancoff v Holford [1973] Qd R 25 .......................................................................................... 9.540, 9.820 Sanders v Acclaim Entertainment, Inc 188 F Supp 2d 1264 (D Colo 2002) ................................. 11.300 Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 ........................ 3.220, 3.300, 3.450, 3.670 Sands v South Australia [2013] SASR 44 ........................................................................................... 7.60 Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49 ............................................. 12.100, 12.180 Sankey v Whitlam (1978) 142 CLR 1 ......................................................................................... 4.40, 4.80 Sapphire (SA) Pty Ltd (trading as River City Grain) v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451 ..................................................................................................................... 5.730 Sartor v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 1 April 1993) .............................................................................................................................................. 3.280 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 ....................................... 11.60, 11.240, 11.330 Saunders v Punch Ltd [1998] 1 WLR 986 ......................................................................................... 7.660 Savige v News Ltd (1932) SASR 240 .................................................................................... 3.280, 3.670 Schaefer v United States 251 US 466 (1920) ..................................................................................... 2.80 Schenck v United States 249 US 47 (1919) ............................................................................ 2.80, 10.40 Schering Chemicals Ltd v Falkman Ltd [1981] 2 All ER 321; [1982] QB 1 .............. 6.560, 7.220, 7.240 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 ..................................................... 3.1460 Science Research Council v Nasse [1980] AC 1028 ........................................................................ 7.360 Scott v Reid [1979] Qd R 37 .............................................................................................................. 9.550 Scott v Sampson (1882) 8 QBD 491 .................................................................................... 3.280, 3.1360 Scott v Scott [1913] AC 417 ............................................................ 5.40, 5.60, 5.80, 5.130, 5.150, 5.420 Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41 ................................................. 12.200, 12.260 Seager v Copydex Ltd [1967] 2 All ER 415 ...................................................................................... 7.420 Seaman v Netherclift [1876] 2 CPD 53 ............................................................................................. 3.740 Secretary of State for Defence v Guardian Newspapers Ltd [1985] AC 339 .................................. 7.660 Secretary of State for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123 .................... 6.940 Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 ................................................................. 7.320 Sepulveda v The Queen [2006] NSWCCA 379 ................................................................................. 8.270 Sergi v ABC [1983] 2 NSWLR 669 .................................................................................................... 3.670 Setka v Abbott [2014] VSCA 287 ............................................................................................ 3.700, 3.710 Seven Network (Operations) Ltd v Warburton (No 1) [2011] NSWSC 385 ........................................ 5.60 Seven Network Ltd v News Ltd (2005) FCA 1394 ............................................................................ 5.675 Seymour v Butterworth (1862) 3 F&F 372 ......................................................................................... 8.980 Seymour v Migration Agents Registration Authority [2006] FCA 965 ................................................. 6.20 Shaddock v Parramatta City Council (1981) 150 CLR 225 ............................................................ 11.330 Shapiro v La Morta [1923] All ER Rep 378 ..................................................................................... 3.1460 Shapowloff v Fitzgerald [1966] 2 NSWR 244 .................................................................................. 3.1550 Shelley Films Ltd v R Features Ltd [1994] EMLR 134 .......... 7.120, 7.240, 7.360, 8.520, 8.940, 8.1040 Shelley Films Ltd v Rex Features Ltd (unreported, English Chancery Division, Mann QC, 10 December 1993) ....................................................................................................................... 7.420 Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 ......................................................... 3.1370 Shulman v Group W Productions, Inc 955 P 2d 469 (Cal 1998) ..................................................... 8.470 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assn of Australia [1971] 1 NSWLR 760 ................................................................................................................................... 8.840 Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 99 ALR 497; 29 FCR 14 .................... 13.120, 13.230 Siemer v Solicitor-General [2009] 2 NZLR 556 ................................................................................... 6.20 Siemer v Solicitor-General (NZ) [2013] NZSC 68 .................................................................. 5.100, 5.160 xlii

Table of Cases Sigalla v TZ Ltd [2011] NSWCA 334 .................................................................................................... 6.20 Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475 .............. 3.560, 9.40, 9.80, 9.260 Sim v Stretch (1936) 52 TLR 669 ...................................................................................................... 3.140 Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129 ................................... 5.340 Sims v Wran [1984] 1 NSWLR 317 .......................................................................... 3.460, 3.470, 3.1130 Singtel Optus Pty Ltd v ACCC (2012) 287 ALR 249 ........................................................... 13.80, 13.350 Sir Charles Sedley’s case (1663) 1 Sid 168; 82 ER 1036 ............................................................... 9.530 Sitwell v Sitwell [2014] FamCAFC 5 .................................................................................................. 5.570 Skalkos v Assaf (2002) Aust Torts Reports 81-644 ......................................................................... 3.1280 Skipworth’s case (1873) LR 9 QB 230 .............................................................................................. 6.700 Skyways Pty Ltd v Commonwealth (1984) 57 ALR 657 ................................................................. 11.280 Slater v Blomfield [2014] NZHC 2221 .................................................................................... 7.660, 7.670 Slim v Daily Telegraph Ltd [1968] 2 QB 157 ................................................................................... 3.1160 Slipper v Magistrates Court of the ACT [2014] ACTSC 85 ..................................................... 4.80, 4.150 Smith v Harris [1996] 2 VR 335 .................................................................................... 5.50, 5.670, 5.675 Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1 ..................................................................... 3.1060 Smith v Lakeman (1856) 26 LJ (NS) Ch 305 ........................................................................ 6.140, 6.530 Smith v McQuiggan (1863) 2 SCR (NSW) 268 ................................................................................. 3.510 Smith v Oldham (1912) 15 CLR 355 ................................................................................................. 4.610 Smith v Western Australia [2014] HCA 3 ........................................................................................... 5.820 Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health (1990) 95 ALR 87 .............................. 7.240, 7.250, 7.260, 7.280, 7.300, 7.360 SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 .............. 5.660 Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 ............................................................... 3.700 Sofilas v Cable Sands (WA) Pty Ltd (1993) 9 WAR 196 ................................................................. 5.730 Solicitor-General (NZ) v Broadcasting Corporation of New Zealand [1987] 2 NZLR 100 ............... 6.240 Solicitor-General (NZ) v Fairfax New Zealand Ltd (HC Wellington CIV-2008-485-705 .................... 6.230 Solicitor-General (NZ) v Krieger [2014] NZHC 172 ............................................................................. 6.20 Solicitor-General (NZ) v Radio Avon Ltd [1978] 1 NZLR 225 ............................................... 6.100, 6.820 Solicitor-General (NZ) v Radio New Zealand Ltd [1994] 1 NZLR 48 ................................... 5.810, 5.820 Solicitor-General (NZ) v Smith [2004] 2 NZLR 540 ..... 5.380, 6.140, 6.260, 6.270, 6.540, 6.660, 6.710, 6.750, 6.810, 6.830, 6.940 Solicitor-General (NZ) v TV3 Network Services & Television NZ Ltd (High Court ........................... 6.420 Solicitor-General (NZ) v W & H Specialist Publications Ltd [2003] 3 NZLR 12 .............................. 6.690 Souder v Pendleton Detectives Inc 88 So 2d 716 (1956) ................................................................ 8.470 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 ...................................................... 5.10 Soultanov v The Age Co Ltd (2009) 23 VR 182 ............................................................................... 3.710 South Australian Telecasters Ltd, Re (1998) 23 Fam LR 692 ................................... 5.570, 6.270, 6.830 South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133 .................... 3.1160 South Suburban Co-operative Society v Orum [1937] 2 KB 690 ..................................................... 7.580 Spadtan Pty Ltd v Australian Broadcasting Corporation (unreported, NSW Supreme Court, Brownie J, 9 November 1993) ........................................................................................... 8.760 Spautz v Williams [1983] 2 NSWLR 506 ............................................................................ 3.1470, 3.1550 Speaker of the Legislative Assembly of Victoria v Glass (1871) LR 3 PC 560 ............................... 4.210 Speidel v Plato Films Ltd [1961] AC 1090 ......................................................................................... 3.690 Speight v Gosnay (1891) 60 LJQB 231 ............................................................................................. 3.450 Spill v Maule (1869) LR 4 Ex 232 ..................................................................................................... 3.860 Spiller v Joseph [2010] 3 WLR 1791 ............................................................................................... 3.1240 Sporting Shooters’ Association (Vic) v Gun Control Australia (1995) A Def R 52,030 .................... 3.990 Sports and General Press Agency v “Our Dogs” Publishing Co Ltd [1916] 2 KB 880 ................... 8.710 Spring v Guardian Assurance Plc [1995] 2 AC 296 ........................................................................ 11.330 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 ................. 5.730, 5.780 State of New South Wales v Plaintiff A [2012] NSWCA 248 ............................................................ 5.440 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 .................................................................... 3.320 Stefanovski v Murphy [1996] 2 VR 442 ............................................................................................. 5.590 Stephens v Avery [1988] 1 Ch 449 ...................................................................................................... 7.60 xliii

Australian Media Law Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 ....................................... 2.90, 3.970 Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 ............................ 12.220 Stern v Piper [1997] QB 123 .............................................................................................................. 3.450 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 ..................................................... 12.220 Stewart v Cook 45 SE 369 ................................................................................................................. 7.330 Stirling v Associated Newspapers Ltd [1960] Sc LT 5 ...................................................................... 6.180 Stoakes v Brydges [1958] QWN 5 .......................................................................................... 8.830, 8.870 Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 ....................................... 2.20, 4.20, 4.70, 4.220 Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 ............................................................... 3.1370 Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 ............................................. 11.20 Stonham v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325 ............................................................................................................................................ 5.780 Stopforth v Goyer (1978) 87 DLR (3d) 373 ........................................................................... 4.100, 4.150 Stormer v Ingram [1978] 21 SASR 93 ............................................................................................... 8.810 Stratton Oakmont Inc v Prodigy Services Inc 1995 NY Misc LEXIS 229 ........................................ 3.560 Strauss v Police (2013) 115 SASR 90 ............................................................................................... 6.610 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 624 .................................................................. 5.770 Stubbs Ltd v Russell [1913] AC 386 .................................................................................................. 3.280 Sullivan v Moody (2001) 207 CLR 562 ........................................................................ 11.40, 11.60, 11.80 Sullivan v Sclanders (2000) 77 SASR 419 ........................................................................................ 7.360 Sun Case 1951, The VP 1951-53/ 171 .............................................................................................. 4.380 Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 ............... 3.1430, 3.1440, 11.340, 13.410 Sun Newspapers v Brisbane TV Ltd (1989) 92 ALR 535 ................................................................. 7.490 Sunday Times, The v United Kingdom [1979] 2 EHRR 245 ................................................. 6.510, 6.540 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 ................................... 3.140 Sunol v Collier [2006] NSWADTAP 51 ............................................................................................... 9.360 Sunol v Collier (No 2) (2012) 289 ALR 128 ............................................ 9.30, 9.90, 9.130, 9.140, 9.320 Superior Court for the City and County of San Francisco v Vargas 137 Cal App 3d 1002 (1982) ........................................................................................................................................... 11.110 Surveillance Devices Act 1998, Re; Ex parte TCN Channel Nine Pty Ltd [1999] WASC 246 ...................................................................................................................................... 8.370, 8.430 Sutherland v Stopes [1925] AC 47 ............................................................................ 3.670, 3.680, 3.1240 Sybron Corporation v Barclay’s Bank plc [1985] Ch 299 .................................................................. 5.770 Sydney Daily Telegraph Case 1971, The House of Representatives Committee of Privileges ........................................................................................................................................ 4.460 Szanto v Melville [2011] VSC 574 .................................................................................................... 3.1280 Szuty v Smyth [2004] ACTSC 77 ............................................................................................... 4.30, 4.80

T T v Attorney-General (1988) 5 NZFLR 357 ....................................................................................... 8.600 T v Medical Board of South Australia (1992) 164 LSJS 430 ....................................... 8.80, 8.110, 8.250 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 ............................................... 8.680, 8.730 TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998) .......................................... 3.120 TCN Channel Nine Pty Ltd v Australian Broadcasting Authority [2002] FCA 896 ........... 13.470, 13.480, 14.740 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 ....... 3.1410, 3.1420, 8.740, 8.900, 8.910 TCN Channel Nine Pty Ltd v Mahoney (1993) 32 NSWLR 397 ...................................................... 3.220 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (2002) 118 FCR 417 ........................ 12.330, 12.410 TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35 ........................... 12.330 TK v Australian Red Cross Society (1989) 1 WAR 335 ................................................................... 5.120 TTT & JJJ v Victoria [2013] VSC 162 ............................................................................................... 5.120 TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720 ...................... 8.680 TWT Ltd v Moore (1991) A Def Rep 51,030 ..................................................................................... 3.700 Taco Co of Aust Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ............................................... 13.60, 13.70 xliv

Table of Cases Talbot v General Television Corporation Pty Ltd [1980] VR 224 ........... 7.60, 7.110, 7.240, 7.430, 8.960 Tame v New South Wales (2002) 211 CLR 317 .............................. 8.1020, 11.60, 11.70, 11.80, 11.230 Tamiz v Google Inc [2013] EWCA Civ 68 .......................................................................................... 3.560 Tate v Duncan-Strelec [2014] NSWSC 1125 ........................................ 5.750, 6.160, 6.530, 6.810, 6.820 Taxation, Deputy Commissioner of v Rettke (1995) 31 IPR 457 ...................................................... 7.330 Taylor v Attorney-General (NZ) [1975] 2 NZLR 675 .............................................................. 5.120, 5.160 Taylor v Canadian Human Rights Commission (1990) 75 DLR (4th) 577 ....................................... 9.120 Taylor v Serious Fraud Office [1999] 2 AC 177 ................................................................................ 5.730 Taylor v Taylor (1979) 143 CLR 1 ...................................................................................................... 5.100 Telegraph Plc, Ex parte [1993] 2 All ER 971 ..................................................................................... 6.280 Television New Zealand Ltd v The Queen [2000] NZCA 354 ................................................. 5.50, 5.670 Telnikoff v Matusevitch [1992] 2 AC 343 ............................................................................. 3.1150, 3.1170 Telstra Corp Ltd v Optus Communications Pty Ltd (1997) ATPR ¶41-451 ...................................... 13.70 Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 ..... 12.20, 12.100, 12.110 Telstra Corporation Ltd v Royal & Sun Alliance Insurance Australia Ltd (2003) 57 IPR 453 ................................................................................................................................................. 12.20 Ten Group Pty Ltd v Cornes [2011] SASC 104; (2012) 114 SASR 46 ......... 3.200, 3.220, 3.230, 3.280 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 ....................................... 8.990, 13.170 Terrill, Ex parte; Re Consolidated Press Ltd [1937] SR (NSW) 255 ................................................ 6.760 Terry v Persons Unknown [2010] EWHC 119 ............................................................. 5.10, 8.570, 8.1040 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 .......................................................................... 8.190 The Board of Inquiry into Disability Services, In the Matter of [2002] ACTSC 28 .......................... 4.160 The Queensland Law Society Incorporated, Ex parte [1984] 1 Qd R 166 ...................................... 5.160 The Royal Commission into the Use of Executive Power, Re; The Queen v Parry (1992) 92 A Crim R 295 ........................................................................................................................... 4.150 The Royal Commission into the Use of Executive Power, Re; The Queen v Parry (unreported, WA Full Court of Supreme Court, 1 May 1997 (determination of contempt)); (1997) 92 A Crim R 295 ................................................................................ 7.510, 7.540 Theakston v MGN Ltd [2002] EMLR 398 ........................................................................................ 8.1040 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 ..... 2.90, 3.970, 3.990, 4.500, 6.780, 8.1050 Thiess v TCN Channel Nine Pty Ltd (No 1) [1991] 2 Qd R 715 ..................................................... 7.580 Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 ...................................................... 3.470, 3.560 Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 ...................................................... 3.830 Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 .................................................................. 3.1160 Thomas v Nash [2010] SASC 153 ......................................................................................... 8.180, 8.270 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 ............................ 3.470, 3.1260 Thompson v Riley McKay Pty Ltd (1980) 29 ALR 267 ................................................................... 13.110 Thorp v CA Imports Pty Ltd (1990) ATPR 40-996 ............................................................. 13.210, 13.220 3AW Southern Cross Radio Pty Ltd v Inner North East Community Radio Incorporated (1994) 16 ATPR 41-313 ................................................................................................................ 14.90 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 533 .................................................. 5.750 Timania Pty Ltd v Inghams Enterprises Pty Ltd [2004] FCA 732 ......................................... 6.530, 6.550 Time Inc v Hill 385 US 374 (1967) .................................................................................................... 8.490 Times Mirror Co v Superior Court of San Diego County 198 Cal App 3d 1420 (1988) ............... 11.210 Titelius v Public Service Appeal Board (1999) 21 WAR 201 ............................................................ 5.670 Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations (1992) 38 FCR 1 ........................................................................................................................... 13.70 Toben v Jones (2003) 129 FCR 515 ...................................................... 9.70, 9.240, 9.260, 9.290, 9.320 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 ............................................................................................................................ 6.80, 14.740 Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22 .......................................................................................................................... 6.80, 14.740 Toll Pty Ltd v Abdulrahman [2007] NSWADTAP 70 .......................................................................... 9.210 Tolley v JS Fry & Sons Ltd [1931] AC 333 ....................................................................................... 8.990 xlv

Australian Media Law Tonnex International Pty Ltd v Dynamic Supplies Pty Ltd (2012) 99 IPR 31; [2012] FCAFC 162 .................................................................................................................................. 12.100 Toogood v Spyring (1834) 1 CM & R 181 ............................................................................. 3.860, 3.970 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 36 ALR 64 .............................. 9.280 Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825 ............ 4.30, 4.80 Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 .................................................... 3.680, 3.880, 3.1240 Trad v Jones (No 3) [2009] NSWADT 318 .......... 9.90, 9.150, 9.210, 9.220, 9.290, 9.300, 9.330, 9.360 Trade Practices Commission v QSVD Holdings Pty Ltd (1995) 131 ALR 493 ................ 13.210, 13.230 Trapp v Mackie [1979] 1 WLR 377 .................................................................................................... 3.740 Trevorrow v South Australia (2006) 94 SASR 64 .............................................................................. 7.240 Triggell v Pheeney (1951) 82 CLR 497 ........................................................................................... 3.1340 Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 ....................................................... 8.570 Trkulja v Google Inc LLC (No 5) [2012] VSC 533 ................................................... 3.560, 3.1270, 6.160 Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 ....................................................................... 3.450, 3.670 Truth and Sportsman Ltd, Ex parte [1961] SR (NSW) 484 .............................................................. 6.270 Tubman, Ex parte; Re Lucas (1970) 72 SR (NSW) 552; 92 WN (NSW) 520 ................ 5.10, 5.60, 6.90 Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 ............................................................... 8.600 Tucker v News Media Ownership Ltd (unreported, New Zealand High Court, Jeffries J, 20 October 1986) .......................................................................................................................... 8.600 Tuqiri v Australian Rugby Union Ltd [2009] NSWSC 781 ................................................................... 5.20 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 ......................... 3.880, 3.1130, 3.1160

U Ultramares Corporation v Touche 174 NE 441 .................................................................................. 11.80 Ultrasonic Slimming Pty Ltd v Fairfax Media Publication Pty Ltd [2013] NSWSC 547 ................... 7.670 Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138 .............................................................. 5.750 Unions NSW v New South Wales (2013) 304 ALR 266 ................................................................... 2.100 Parliamentary Privilege United Kingdom, .................................................................................... 4.20, 4.30 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 ...................................... 8.960 United States Department of Justice v Reporters Committee for Freedom of the Press 489 US 749 (1989) ........................................................................................................................ 5.710 United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 ..................... 5.160, 5.340, 6.90, 6.950 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 222 FCR 465 ......... 12.360, 12.370 Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783 .................................................................................................................. 5.670, 5.675 Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 ............................................ 13.50, 13.400 University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 .............. 12.30, 12.100 University of New South Wales v Moorhouse (1975) 133 CLR 1 .................................................. 12.360 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 ................. 3.560, 6.160 Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 ...................................................................... 4.80 Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 ............................................................. 3.1320

V Vadja v Nine Network Australia Ltd [2000] NSWSC 873 .................................................................. 6.530 Vaise v Delaval (1785) 1 TR 11; 99 ER 944 ..................................................................................... 5.820 Vajda v Nine Network Australia Ltd [2001] NSWSC 840 .................................................................. 6.530 Van Stokkum v The Finance Brokers Supervisory Board [2002] WASC 192 ........... 5.670, 5.760, 5.770 Various Claimants v News Group Newspapers (No 2) [2013] EWHC 2119 .................................... 7.590 Venables v News Group Newspapers Ltd [2001] 1 All ER 908 .......... 7.60, 8.520, 8.530, 8.600, 8.940, 8.1040 Versace v Monte [2001] FCA 1565 ...................................................................................................... 5.60 Victoria v Australian Building Construction Employees and Builders’ Labourers Federation (1982) 152 CLR 25 .......... 6.80, 6.140, 6.220, 6.260, 6.270, 6.520, 6.560, 6.680, 6.720, 6.730, 6.760 Victoria v Commonwealth (1975) 134 CLR 81 .................................................................................... 4.80 xlvi

Table of Cases Victoria v Nine Network (2007) 19 VR 476 ............................................................................ 7.280, 7.290 Victoria Legislative Assembly Speaker v Glass (1871) LR 3 .............................................................. 4.80 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 .......... 8.440, 8.710, 8.840, 8.990, 12.100 Violi v Berridale Orchards Ltd (2000) 99 FCR 580; [2000] FCA 797 ............................................... 8.250 Virginia v Black 155 L Ed 2d 535 (2003) ............................................................................................ 2.80 Vokalek v Commonwealth (2008) 101 SASR 588 ................................................................. 9.570, 9.600 Von Hannover v Germany (2005) 40 EHRR 1 ..................................................................... 8.570, 8.1040

W W v Edgell [1990] 2 WLR 471 ........................................................................................................... 7.360 W v M [2009] NSWSC 1084 ................................................................................................... 5.150, 5.380 WB v H Bauer Publishing Ltd [2002] EMLR 145 ............................................................................ 8.1040 WK v The Queen (2011) 33 VR 516 ............................................................... 8.110, 8.370, 8.380, 8.400 WP Keighery Pty Ltd v Federal Commissioner of Taxation (1957) 100 CLR 66 ........................... 15.220 Wade v Gilroy (1986) 10 Fam LR 793 ....................................................................... 6.820, 6.900, 6.960 Wagdy Hanna and Associates Pty Ltd v National Library of Australia (2004) 155 ACTR 39 ................................................................................................................................................... 7.250 Wagga Wagga Aboriginal Action Group v Eldridge (1995) Eq Opp Cases 92-701 ................ 9.90, 9.290 Wainer v Rippon [1980] VR 129 .......................................................................................................... 3.70 Wainohu v New South Wales (2011) 243 CLR 181 ............................................................................ 5.10 Wainwright v Home Office [2004] 2 AC 406 ......................................................................... 8.510, 11.250 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 .................................. 3.280, 3.450, 3.670, 3.840 Wallace v Wallace [2001] WASC 134 ................................................................................................ 3.700 Wallace v Walplan Pty Ltd (1985) 58 ALR 737 ............................................................................... 13.300 Walsh v Ervin [1952] VLR 361 ........................................................................................................... 8.840 Walsh v Jewell [1998] WASC 304 .................................................................................................... 3.1550 Walt Disney Productions Inc v Shannon 276 SE 2d 580 (Ga 1981) ............................................. 11.280 Walter v Bauer 439 NYS 2d 821 ...................................................................................................... 11.280 Walter v Lane [1900] AC 539 ............................................................................................................. 12.20 Wandin Springs v Wagner [1991] 2 VR 496 ....................................................................................... 5.10 Ward, Lock & Co Ltd v Operative Printers’ Assistance Society (1906) 2 TLR 327 ........................ 8.840 Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180 ...................................................... 3.350 Wason v Walter (1868) LR 4 QB 73 ................................................................... 3.800, 3.810, 4.40, 4.70 Wason, Ex parte (1869) LR 4 QB 573 ................................................................................................ 4.40 Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716; (1986) 6 NSWLR 733 ............................................................................................................ 6.260, 6.680, 6.950 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 ............................. 3.830, 3.1340 Waterhouse v Gilmore (1988) 12 NSWLR 270 .................................................... 3.1470, 3.1480, 3.1550 Waters v Public Transport Corporation (1991) 173 CLR 349 ........................................................... 9.270 Watkin v Hall (1868) LR 3 QB 396 ........................................................................................ 3.450, 3.670 Watson v M’Ewan [1905] AC 480 ...................................................................................................... 3.740 Watters v TSR Inc 904 F 2d 378 (1990) ......................................................................................... 11.300 Watts v Hawke & David Syme & Co Ltd [1976] VR 707 ................................................................... 6.80 Wavish v Associated Newspapers Ltd [1959] VR 57 ........................................................................ 9.540 Way v Boy Scouts of America 856 SW 2d 230 (Tex App 1993) .................................................... 11.290 Webb v Bloch (1928) 41 CLR 331 ......................................................................................... 3.560, 3.960 Webb v Times Publishing Co Ltd [1960] 2 QB 535 .......................................................................... 3.810 Webster v Deahm (1993) 116 ALR 222 ............................................................................................. 4.620 Weirum v RKO General Inc 539 P 2d 36 (Cal 1975) .......................................................... 11.40, 11.120 Welker v Rinehart [2011] NSWSC 1094 ................................................................................. 5.420, 5.430 Welker v Rinehart [2011] NSWSC 1636 ............................................................................................ 5.430 Welker v Rinehart (No 5) [2012] NSWSC 45 .................................................................................... 5.440 Welker v Rinehart (No 6) [2012] NSWSC 160 .................................................................................. 5.440 Welker v Rinehart (No 7) [2012] NSWSC 222 .................................................................................. 5.440 Weller v Associated Newspapers Ltd [2014] EWHC 1163 .................................................. 8.560, 8.1040 xlvii

Australian Media Law Wennhak v Morgan [1898] 20 QBD 635 ........................................................................................... 3.760 West Australian Newspapers Ltd v Bond (2009) 40 WAR 16 .......................................................... 7.580 West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387 ........................................................ 3.700 West Australian Newspapers Ltd v Western Australia [2010] WASCA 10 ................................ 5.20, 5.50 Western Aboriginal Legal Services Ltd v Jones [2000] NSWADT 102 ................................. 9.280, 9.320 Western Australia v Armstrong [2007] WASCA 204 ............................................................... 6.230, 6.410 Western Australia v BLM (2009) 40 WAR 414; [2009] WASCA 88 .................................................. 6.420 Western Australia v West Australian Newspapers Ltd (2005) 30 WAR 434 .................................... 5.570 Westpac Banking Corporation v John Fairfax Group Pty Ltd (1991) 19 IPR 513 ....... 7.60, 7.80, 7.130, 7.160, 7.220, 7.230, 7.240, 7.410 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 ................................................. 3.700 Whiskisoda Pty Ltd v HSV Channel Seven Pty Ltd (unreported, Vic Supreme Court, McDonald J, 5 November 1993) ................................................................................................... 8.680 Whitney v California 274 US 357 (1927) ............................................................................................. 2.80 Whitney v Moignard (1890) 24 QBD 630 .......................................................................................... 3.450 Wilkins v Condell [1940] SASR 139 ................................................................................................... 8.780 Wilkinson v Downton [1897] 2 QB 57 ....................................................................... 8.650, 8.920, 11.250 William Heinemann Ltd v Kyte Powell (1959) 103 CLR 351 ............................................................ 9.530 Williams v Spautz (1992) 174 CLR 509 ............................................................................. 3.1470, 3.1550 Willis v Brooks [1947] 1 All ER 191 ................................................................................................... 3.530 Willis v Perry (1912) 13 CLR 592 ........................................................................................... 4.230, 4.250 Willis v Wilkinson (unreported, ACT Magistrates’ Court, 3 March 1994) .............................. 8.680, 8.780 Willshire-Smith v Votino Bros Pty Ltd (1993) 41 FCR 496 ..................................................... 6.90, 6.530 Wilson v First County Trust (No 2) (2004) 1 AC 816 ......................................................................... 4.80 Wilson v Mitchell [2014] VSC 280 ...................................................................................................... 5.675 Wilson, Re; ex parte Vine (1878) 8 Ch D 364 .................................................................................. 3.500 Winter v GP Putnam’s Sons 938 F 2d 1033 (9th Cir 1991) ........................................................... 11.280 Witham v Holloway (1995) 183 CLR 525 ............................................................................................ 6.20 Witness v Marsden (2000) 49 NSWLR 429 .................................................................. 5.20, 5.120, 5.530 Wong Yueng Ng v Secretary for Justice [1999] 3 HKC 143 ............................................................ 6.940 Wood v Branson (1952) 3 SALR 369 ................................................................................................ 3.210 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 .................................... 3.700 Woodward v Hutchins [1977] 1 WLR 760 ................................................................... 7.230, 7.360, 7.410 Wookey v Quigley [2009] WASC 284 ................................................................................................ 3.710 Woolworths Ltd v Olson (2004) 63 IPR 258 ...................................................................................... 12.70 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 .............................................................. 13.70 Wotton v Queensland (2012) 246 CLR 1 ............................................................................................ 2.90 Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241 ................................................ 7.580 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 .............................. 3.1070, 3.1080 Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 .................................... 3.730, 4.140 Wynne v Green (1901) 1 SR (NSW) 40 ............................................................................................ 8.660 Wyong-Gosford Progressive Community Radio Inc v Australian Communications and Media Authority and Gosford Christian Broadcasters Ltd [2006] FCA 1691 ............................ 14.630 Wyong Shire Council v Shirt (1980) 146 CLR 40 ............................................................................. 11.20

X X v Amalgamated Television Services Pty Ltd (No 2) (1987) 9 NSWLR 575 ........................ 6.50, 6.260 X v General Television Corporation Pty Ltd [2008] VSC 344 ........................................................... 5.200 X v South Australia [2002] SASC 53 ...................................................................................... 5.470, 5.570 X v Sydney Children’s Hospitals Specialty Network & Anor [2011] NSWSC 1272 ......................... 5.440 X v Y [1988] 2 All ER 648 ...................................................................................................... 7.360, 7.420 X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 AC 1 .............................................................. 7.590 X7 v Australian Crime Commission (2013) 248 CLR 92 ..................................................................... 6.80 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 ............................. 8.730 XYZ v Victoria Police [2010] VCAT 255 ............................................................................................... 2.90 Xuarez & Vitela [2012] FamCA 574 ................................................................................................... 6.810 xlviii

Table of Cases

Y Y v University of Western Australia [2006] FCA 466 .......................................................................... 5.80 Y & Z v W (2007) 70 NSWLR 377 ......................................................................................... 6.530, 6.550 Yakubowicz v Paramount Pictures Corp 536 NE 2d 1067 (Mass 1989) ........................................ 11.300 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 714 ............................ 6.90 Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775 ............... 6.550, 6.830 Yorke v Lucas (1985) 158 CLR 661 ............................................................ 13.60, 13.80, 13.360, 13.410 Young v Munro (unreported, NSW Supreme Court, Levine J, 12 May 1995) ............................... 3.1430 Young v Wheeler (1987) Aust Torts Reports 80-1267 ....................................................................... 8.880 Youssoupoff v MGM (1934) 50 TLR 581 ........................................................................................... 3.170

Z ZAM v CFW, TFW [2013] EWHC 662 ............................................................................................... 5.120 Zamora v Columbia Broadcasting System 480 F Supp 199 (SD Fla 1979) .................................. 11.300 Zeran v American Online Inc 129 F 3d 327 (4th Cir 1997) .............................................................. 3.560 Zugic v Croatia (no 3699/08 ............................................................................................................... 6.940

xlix

Table of Statutes COMMONWEALTH Australian Association of National Advertisers (AANA) Code of Ethics: 13.560 s 1: 13.520, 13.530, 13.540 s 1.1: 13.520 s 1.2: 13.520 s 1.3: 13.520 s 1.4: 13.520 s 1.5: 13.520 s 2: 13.520, 13.530 s 2.1: 13.520 s 2.2: 13.520 s 2.3: 13.520 s 2.4: 13.520 s 2.5: 13.520 s 2.6: 13.520 s 2.7: 13.570 Aboriginal Land Rights (Northern Territory) Act 1976 s 70G: 5.450 Access to Justice (Federal Jurisdiction) Amendment Act 2012: 5.390, 5.400 Acts Interpretation Act 1901 s 15AB: 4.80 Administrative Appeals Tribunal Act 1975 s 35: 5.570 s 35AA: 5.570 s 39A: 5.570 s 63: 6.50 Administrative Decisions (Judicial Review) Act 1977: 14.200, 14.1420 Anti-Terrorism Act (No 2) 2005 Sch 7: 10.70 Auditor of Parliamentary Allowances and Entitlements Bill 2000 [No 2]: 4.620 Australia-United States Free Trade Agreement Art 21: 14.1150 Australian Bicentennial Authority Act 1980: 13.430 s 22: 13.430 Australian Broadcasting Corporation Act 1983: 14.20, 14.130 s 6: 14.70 s 6(2)(a): 14.70 s 6(2)(a)(ii): 14.940

s 6A: 14.70, 14.300 s 8(1)(e): 14.70, 14.1310 s 21AA: 14.130 s 26: 14.70 s 27: 14.70 s 31: 14.70 ss 31B to 31C: 14.70 s 78: 14.740 s 79: 14.70 s 79A(1): 4.590 s 79A(2): 4.640 s 79A(3): 4.640 s 79A(5): 4.640 s 79B: 4.640 Australian Capital Territory (Self-Government) Act 1988 s 24: 4.90, 4.160, 4.230, 4.300 s 24(3): 3.730, 4.300 s 24(4): 4.300 Australian Communications and Media Authority Act 2005: 14.20, 14.1360 s 6: 14.1360 s 9: 14.160 s 10: 14.740, 14.1370 s 12: 14.740 s 14: 14.1370 s 16: 14.1370 ss 19 to 35: 14.1360 s 36(2): 14.1370 s 54: 14.1360 s 58: 14.1390 s 84(1): 14.1370 Pt 2, Div 2: 14.1370 Pt 7A: 14.1390 Australian Security Intelligence Organisation Act 1979: 10.180 s 34F: 10.180 s 34G: 10.180 s 34G(5): 10.180 s 34G(6): 10.180 s 34K(10): 10.180 s 34L(2): 10.180 s 34L(3): 10.180 s 34L(4): 10.180 s 34L(6): 10.180 s 34L(7): 10.180 s 34L(8): 10.180 s 34L(10): 10.180 ss 34R(1) to (4): 10.180 li

Australian Media Law Australian Security Intelligence Organisation Act 1979 — cont s 34S: 10.180 s 34ZO: 10.180 s 34ZO(2): 10.180 s 34ZP: 10.180 s 35P: 10.220 s 91: 10.20, 10.220 Bankruptcy Act 1966 s 60(4): 3.500 Broadcasting Act 1942: 14.20, 14.30, 14.1110, 15.40, 15.120 s 4(1): 14.30 s 100(5A): 13.470 s 100(10): 13.470 Broadcasting Amendment (Digital Dividend) Act 2013 (Cth): 14.1270 Broadcasting Legislation Amendment Bill 2007 items 136 to 138: 14.460 item 143: 14.460 item 155: 14.460 Broadcasting Legislation Amendment Bill (No 2) 2001: 14.1230 Broadcasting Legislation Amendment Bill (No 2) 2002: 14.780 Broadcasting Legislation Amendment (Convergence Review and Other Measures) Act 2013: 14.10, 14.70, 14.1020 Broadcasting Legislation Amendment (Convergence Review and Other Measures) Bill 2013: 14.10, 15.530 Item 3: 14.530 Item 5: 14.1020 Broadcasting Legislation Amendment (Digital Dividend and Other Measures) Act 2011: 14.200, 14.280 item 6, para [10]: 14.200 item 6, para [11]: 14.200 Broadcasting Legislation Amendment (Digital Radio) Act 2007: 14.400 Broadcasting Legislation Amendment (Digital Radio) Act 2008: 14.470 Broadcasting Legislation Amendment (Digital Radio) Bill 2007: 14.160, 14.410, 14.420, 14.430, 14.440 item 2: 14.450 item 15: 14.410, 14.450 item 16: 14.500 item 17: 14.450 lii

item 19: 14.450 item 21: 14.450 item 26: 14.440 item 36: 14.200 item 38: 14.590 item 40: 14.490 Item 41: 15.130 item 66: 14.480 item 98: 14.90 item 146: 14.470 item 172: 14.480 item 161: 14.470 Broadcasting Legislation Amendment (Digital Television) Act 2006: 14.250, 14.1340 Broadcasting Legislation Amendment (Digital Television) Bill 2006: 14.250, 14.310, 14.330 Item 13: 14.540 item 35: 14.1230 item 74: 14.1230 Broadcasting Legislation Amendment (Digital Television) Bill 2010: 14.560, 14.570 Broadcasting Legislation Amendment (Digital Television Switch-Over) Act 2008: 14.260 Broadcasting Legislation Amendment (News Media Diversity) Bill 2013: 14.10, 15.530 Broadcasting Legislation Amendment (Regional Commercial Radio) Act 2012: 14.1200 Broadcasting Legislation Amendment (Regional Commercial Radio Local Content) Act 2012: 14.1190 Broadcasting Services Act 1992: 3.1420, 4.580, 4.590, 4.600, 4.640, 9.510, 10.300, 13.410, 14.10, 14.20, 14.30, 14.40, 14.50, 14.60, 14.70, 14.90, 14.120, 14.130, 14.140, 14.160, 14.170, 14.230, 14.410, 14.450, 14.470, 14.490, 14.520, 14.550, 14.560, 14.570, 14.610, 14.630, 14.670, 14.680, 14.690, 14.710, 14.720, 14.820, 14.840, 14.860, 14.930, 14.940, 14.960, 14.970, 14.1000, 14.1010, 14.1110, 14.1160, 14.1170, 14.1180, 14.1230, 14.1240, 14.1250, 14.1260, 14.1270, 14.1280, 14.1340, 14.1350, 14.1370, 14.1380, 14.1390, 14.1400, 14.1420, 14.1440, 14.1460, 15.30, 15.40, 15.50, 15.100, 15.110, 15.120, 15.140, 15.150, 15.200, 15.220, 15.230, 15.270, 15.290, 15.320, 15.330, 15.370, 15.380, 15.460, 15.500, 15.510 s 3: 14.40 s 3(1)(g): 14.1170 s 3(1)(ea): 14.1170 s 3(b): 15.30 s 3(c): 15.30

Table of Statutes Broadcasting Services Act 1992 — cont s 3(e): 14.1150 s 4: 14.40 s 4(2): 4.640 s 4(3A): 14.40 s 5: 14.740 s 5(1)(a): 14.1350 s 5(1)(b): 14.1350 s 5(2): 14.1350 s 6: 14.50, 14.90, 14.100, 14.930, 14.940, 14.1190, 14.1260, 14.1280 s 6(1): 15.180, 15.210, 15.230, 15.260 s 6(1)(a): 14.160 s 6(1)(b): 14.160 s 6(2): 14.50 s 6(3): 15.230 s 8(1): 15.260 s 8(2): 15.260 s 8(3): 15.260 s 8(4): 15.260 s 8(5): 15.260 s 8A: 14.50 s 8AA: 14.440 s 8AB: 14.410 s 8AC: 14.440, 14.510 s 8AC(3)(b): 14.510 s 8AD(1): 14.440 s 8AD(2): 14.440 s 8AD(3): 14.440 s 8AF: 14.1190 s 11: 14.60 s 11A: 14.60 s 13(1): 14.70 ss 13(2) to (4): 14.70 s 13(5): 14.70 s 14: 14.80 s 14(1): 14.80 s 14(2): 14.80 s 15: 14.90 s 16: 14.100 s 17: 14.110 s 18: 14.120 ss 18(1A) to (5): 14.120 s 18(3): 14.510 s 18(4): 14.510 s 18(5): 14.510 s 18A: 14.130 s 19: 14.140 s 19(3): 14.1370 s 20: 14.140 s 21: 14.150 s 21(5): 14.150 s 22: 14.140 s 23: 14.170 s 24: 14.180 s 25: 14.190

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

26: 14.200 26(1A): 14.200 26(1B): 14.200 26C: 14.200 26D: 14.200 27(1A): 14.200 27(1B): 14.200 29: 14.200 30: 14.200 31: 14.220 32: 14.220 33: 14.210 34: 14.90, 14.230, 14.650 34(3): 14.230 34(4): 14.230 35C: 14.500 35D(4): 14.500 36: 14.530, 14.590 36(2): 14.530, 14.590 36(3): 14.530, 14.590 36A: 14.590 37(1)(a): 14.690 37(1)(b): 14.700 37(2): 14.700 37A: 14.530 38: 14.530 38A: 14.550 38A(1)(aa): 14.550 38A(2): 14.550 38A(11): 14.700 38B: 14.330, 14.550 38B(24): 14.700 38C: 14.200, 14.550, 14.560, 14.570, 14.740, 17.750, 14.820, 14.1180, 14.1230 s 38C(1): 14.570 s 38C(5): 14.700 s 38C(10): 14.700 s 38C(15): 14.570, 14.900 ss 38C(17) to (20): 14.570 s 38C(24): 14.700 s 39: 14.610 s 39(11): 14.700 s 40: 14.440, 14.540, 14.600, 17.750, 14.1200, 14.1230 s 40(1): 14.940, 14.1020, 14.1030, 14.1180, 14.1190, 14.1200 s 41(1): 14.700 s 41(2): 14.700 s 41(3): 14.700 s 41C: 14.530 s 41D: 14.590 s 41CA: 14.570 s 43: 14.1160 s 43(1): 14.810 s 43(2): 14.810 liii

Australian Media Law Broadcasting Services Act 1992 — cont s 43(3): 14.810 s 43(4): 14.810 s 43(5): 14.810 s 43A: 14.1180 s 43B: 14.1210 s 43B(8): 14.1210 s 43B(9): 14.1210 s 43B(10): 14.1210 s 43C: 14.1200, 14.1220 s 43C(2A)(c): 14.1190 s 43C(2): 14.1200 s 43D: 14.490 s 43D(1)(2): 14.450 s 43AA: 14.570, 14.1180 s 43AA(3B): 14.1180 s 43AA(3): 14.1180 s 43AA(6): 14.1180 s 43AB: 14.570 s 43AC: 14.570 s 43AD: 14.570 s 44: 8.1180 s 44(1): 14.810 s 44(2): 14.810 s 44(2)(a): 14.980 s 45: 14.820 s 46: 14.820 s 47: 14.820 s 47(3): 14.820 s 48: 14.830 s 49: 14.830 s 50A: 14.1190, 15.50, 15.160 s 51: 15.60, 15.160 s 51A: 14.1270, 15.100 s 52A: 14.1460 s 53(1): 15.80 s 53(2): 15.90 s 54: 15.120 s 54A: 14.1270, 15.100 s 54B: 15.130 s 55: 15.110 s 56: 15.140 s 56A: 15.110 s 59(2): 15.180 s 59(3): 15.180 s 59(4): 15.180 s 59(4A): 15.180 s 59(4B): 15.180 s 59(4C): 15.180 s 59(4D): 15.180 s 59(5): 15.180 s 59(6): 15.180 s 61Ay: 15.160 s 61AA: 15.160 s 61AB(1): 15.160 s 61AB(2): 15.160 liv

s 61AC: 15.160 s 61AD: 15.160 s 61AE: 15.160 s 61AF: 15.160 s 61AG: 15.300 s 61AH: 15.300 ss 61AJ to 61AM: 15.290 s 61AL: 15.290 s 61AM: 15.290 s 61AN: 15.310 ss 61AN(4) to (4C): 15.310 s 61AN(9): 15.310 s 61AP: 15.310 s 61AQ: 15.310 s 61AR: 15.310 s 61AS: 15.290 s 61AT: 15.290 s 61AU: 15.160, 15.350 s 61AV: 15.160 s 61AZ: 15.160 s 61BB: 15.190 s 61BC: 15.190 s 61BD: 15.190 s 61BE: 15.190 s 61BF: 15.190 s 61BF(8): 15.190 s 61BG: 15.190 s 61BH: 15.190 s 61CB: 14.1210 s 61CC: 14.1220 s 61CD: 14.1200, 14.1220 s 61CE(1): 14.1220 s 61CR(1): 14.1220 s 61CT: 14.1190 s 61AEA: 15.170 s 61AMA: 15.300 s 61AMB: 15.300 ss 61AMC to 61AMF: 15.290 s 61AME: 15.290 s 61ANA: 15.310 s 61AZA: 15.160 s 61AZB: 15.160 s 61AZC: 15.160 s 61AZD: 15.160 s 61AZE: 15.160 s 61AZF: 15.160 ss 63 to 65B: 15.330 s 65: 15.160 s 65A: 15.330 s 65B: 15.330 s 66: 15.300 s 67: 15.290 s 68: 15.290 s 69: 15.290 s 70: 15.310 s 71: 15.310

Table of Statutes Broadcasting Services Act 1992 — cont s 72: 15.310 s 73: 15.90 s 73A: 15.90 s 74: 15.270 s 75: 15.340 s 77: 15.380 s 78: 15.110 s 79: 14.630, 14.690 s 80: 14.630 s 80(1): 14.690 s 81(1)(a): 14.690 s 81(1)(b): 14.700 s 81(2): 14.700 s 82: 14.640 s 83: 14.690 s 83(1): 14.700 s 83(2): 14.700 s 83(3): 14.700 s 84(1): 14.630 s 84(2): 14.630, 14.650, 14.820 s 84(2)(e): 15.360 s 84(2)(f): 15.360 s 84A: 14.630 s 85: 14.630, 14.640 s 85A: 14.630 s 85A(1): 14.630 s 85A(2): 14.630 s 85A(3): 14.630 s 87(1): 14.810 s 87(2): 14.810 s 87(3): 14.810 s 87(4): 14.810 s 87(5): 14.810 s 87A: 14.780, 14.810 s 87A(7): 14.780 s 87B: 14.450, 14.630 s 88: 8.1180 s 88(1): 14.810 s 88(2): 14.810 s 88(2)(a): 14.980 s 89: 14.820 s 90: 14.820 ss 90(1C) to (1F): 14.820 s 91: 14.820 s 91(3): 14.820 s 91A: 14.830 s 91A(5): 14.830 s 91A(8): 14.830 s 92: 14.830 s 92B: 14.650 s 92C(1): 14.690 s 92C(2): 14.700 s 92D(1): 14.700 s 92D(2): 14.700 s 92D(3): 14.700

s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

92E: 14.650 92E(1)(a): 15.360 92E(1)(b): 15.360 92F: 14.650 92G: 14.780 92G(1)(a): 14.200 92G(1)(c): 14.820 92G(2): 14.820 92H(b): 14.780 92J(1): 14.810 92J(2): 14.810 92J(2)(a): 14.980 92J(3): 14.810 92J(4): 14.810 92J(5): 14.810 92J(6): 14.810 92J(7): 14.810 92K: 14.820 92L: 14.830 95(1)(a): 14.690 95(1)(b): 14.700 95(2): 14.700 96: 15.370 96(1): 14.30, 14.660 96(2): 14.660 96(5): 15.370 97: 15.370 98(1): 14.700 98(2): 14.700 98(3): 14.700 98D(2): 14.570 99: 14.650 99(2): 14.810 99(4): 14.810 99(5): 14.810 99(6): 14.810 99(7): 14.810 100(1): 14.810 100(2): 14.810 100(2)(a): 14.980 100(3)(a): 14.790 100(3)(b): 14.790 100(4): 14.790 100(4A): 14.790 100(5): 14.790 100(6): 14.790 102: 14.1150 103B: 14.1150 103H: 14.1150 103JA: 14.1150 108A: 14.650 113: 14.830 114: 14.830 115(1): 14.1230 115(1A): 14.1230 115(1B): 14.1230 lv

Australian Media Law Broadcasting Services Act 1992 — cont s 115(1AA): 14.1230 s 115(1AB): 14.1230 s 115(2): 14.1230 s 115(3): 14.1230 s 115A: 14.1250 s 117: 14.670 s 118(1): 14.810 s 118(2): 14.810 s 119(1): 14.810 s 119(2): 14.810 s 119(2)(a): 14.980 s 120: 14.810 s 120(1): 14.810 s 120(2): 14.810 s 121: 14.670, 14.810 s 121B: 14.790 s 121E(2): 14.790, 14.800 s 121G: 14.1020 s 121G(1): 14.1030 s 121G(2): 14.1020, 14.1030 s 121G(2)(c): 14.1020 s 121G(6) to (12): 14.1020 s 121G(13): 14.1020 s 121G(14) to (15): 14.1020 s 121FP: 14.130 s 121FR: 14.1430 s 122(1): 14.940 s 122(2): 14.940 s 122(4): 14.940 s 122(6): 14.1110 s 122(7): 14.940 s 122(8): 14.940 s 122(9): 14.1030 s 122(10): 14.1030 s 122(11): 14.940 s 123: 8.1180, 9.30 s 123(1): 14.950 s 123(2): 14.950 s 123(3): 14.950 s 123(3A) (e): 14.950 s 123(3A)(a): 14.950 s 123(3A)(b): 14.950, 14.990 s 123(3A)(c): 14.950 s 123(3A)(d): 14.950 s 123(3C)(a): 14.950 s 123(3C)(b): 14.950, 14.990 s 123(3C)(c): 14.950 s 123(3C)(d): 14.950 s 123(3C)(e): 14.950 s 123(3E): 14.950 s 123(4): 14.950 s 123(5): 14.370 ss 123(5) to (7): 14.950 s 123(6): 14.490 s 123(7): 14.490 lvi

s 123B: 14.950 s 124(1): 14.950 s 124(2): 14.950 s 124(3): 14.950 s 125: 14.940, 14.1160 s 125(1): 14.940, 14.980, 14.1160 s 125(2): 14.940 s 126: 14.940 s 127: 14.940 s 128: 14.930, 14.960 s 129: 14.940 s 130: 14.970 s 130A: 14.740 s 130A(7): 14.740 s 130K: 14.740 s 130V(1): 14.740 s 130AA: 14.740 s 130AA(3): 14.740 s 130AC: 14.560, 14.740 s 130ZB: 14.560 s 130ZH: 14.560 s 130ZBB: 14.560 s 130ZZA(1): 14.950 ss 131 to 135: 14.850 s 136: 14.850 ss 136A to 136E: 14.860 s 137: 14.870 s 138: 14.870 s 138A: 14.870 s 139: 4.590, 14.730 s 139(1A): 14.890 s 139(1B): 14.890 s 139(1C): 14.890 ss 139(1) to (5): 14.890 s 139(2)(c): 14.890 s 139(3A): 14.890 s 139(3B): 14.890 s 139(3C): 14.890 s 139(6): 14.910 s 140A: 4.590, 14.730, 14.890 s 140A(6): 14.910 s 140A(7): 14.910 s 141: 4.590, 8.1180 s 141(1): 14.890 s 141(2): 14.890 s 141(3): 14.890 s 141(4): 14.910 s 141(5): 14.910 s 141(6): 14.980 s 141(7): 14.980 s 142: 14.890 s 142(4): 14.910, 14.980 s 142A: 14.890, 14.910, 14.980 s 143(1): 14.900 s 143(1A): 14.900 s 143(1B): 14.900

Table of Statutes Broadcasting Services Act 1992 — cont s 143(2): 14.900 s 144: 14.920 s 146C: 14.1240 s 146D: 14.1240 s 147: 14.1440 s 148: 14.1440 s 149: 8.1180, 14.1440 s 150: 14.1450 s 150(2): 14.1450 ss 150 to 153: 14.1440 s 151: 14.1450 s 152(1): 14.1450 s 152(2): 14.1450 s 153: 14.1450 s 160(d): 14.1100 s 168(1): 14.1390 s 168(2): 14.1390 s 169: 14.1400 s 170: 14.740 ss 170 to 180: 14.1400 s 171: 14.1370 s 178: 14.740 ss 182 to 199: 14.1400 s 200: 14.1410 s 201: 6.50, 14.1410 ss 202(1) to (2B): 14.1410 s 202(3): 14.1410 s 202(4): 14.1410 s 203: 14.1410 s 204: 14.1420 s 205: 14.1420 s 205B: 17.750 s 205F: 14.840, 14.860 s 205F(8): 14.860 s 205J: 14.860 s 205L: 14.860 s 205M: 14.860 s 205N: 14.860 s 205Q: 15.300 s 205W: 8.1180 ss 205W(1)(d) to (f): 14.980 s 205X: 8.1180, 14.1380 s 205ZA: 15.330 s 209(1): 14.850 s 209(2): 14.850 s 210: 14.150, 15.270 s 213: 14.850 s 215: 14.860 cl 7(1)(aa): 14.1020 cl 91: 5.220 Ch 14: 14.730, 14.760 Ch 15: 14.730, 14.760, 14.770 Pt 2: 15.230 Pt 3: 14.170 Pt 5: 15.50

Pt 5, Div 5A: 15.150 Pt 5, Div 5B: 15.190 Pt 5, Div 5C: 14.1220 Pt 5, Div 5C, subdiv C: 14.1220 Pt 5A: 15.530 Pt 6A: 14.90 Pt 7, Div 2A: 14.1150 Pt 8B: 14.130 Pt 9: 14.970 Pt 9B: 14.740 Pt 9C: 14.560 Pt 9D: 14.1450 Pt 10: 14.840 Pt 10A: 14.1240 Pt 14A: 14.20 Pt 14C: 14.880 Pt 14E: 15.330 Div 2A: 14.1150 Sch 1: 15.210 Sch 1, cl 2(2): 15.230 Sch 1, cl 2(2A): 15.230 Sch 1, cl 2(2B): 15.230 Sch 1, Pt 1: 15.220 Sch 1, Pt 1, cl 1(1): 15.220 Sch 1, Pt 2: 15.220, 15.230 Sch 1, Pt 2, cl 2(3): 15.230 Sch 1, Pt 2, cl 2(4): 15.220 Sch 1, Pt 2, cl 2(5)(a): 15.230 Sch 1, Pt 2, cl 2(5)(b): 15.230 Sch 1, Pt 2, cl 2(5)(c): 15.230 Sch 1, Pt 2, cl 3(1): 15.230 Sch 1, Pt 2, cl 3(2): 15.230 Sch 1, Pt 2, cl 3(3): 15.230 Sch 1, Pt 2, cl 4: 15.230 Sch 1, Pt 3: 15.240, 15.250 Sch 1, Pt 4: 15.250 Sch 2: 14.710, 14.730, 14.780, 14.810, 14.890, 14.910, 14.1300 Sch 2, cl 1: 4.590, 4.600, 4.640 Sch 2, cl 3(2): 4.590 Sch 2, cl 3(3): 4.590 Sch 2, cl 3A: 4.600 Sch 2, cl 3A(2): 4.600 Sch 2, cl 3A(3): 4.600 Sch 2, cl 3A(4): 4.600 Sch 2, cl 4(3): 4.640 Sch 2, cl 5: 4.640 Sch 2, cl 5(8): 4.640 Sch 2, cl 6: 13.490 Sch 2, cl 7: 9.700 Sch 2, cl 7(1): 14.890 Sch 2, cl 7(1)(c): 15.280 Sch 2, cl 7(1)(g): 14.990 Sch 2, cl 7(1)(q): 15.190 Sch 2, cl 7(1)(ga): 14.990 Sch 2, cl 7(1)(ob): 14.360 lvii

Australian Media Law Broadcasting Services Act 1992 — cont Sch 2, cl 7(2)(b): 14.700 Sch 2, cl 7A: 14.560 Sch 2, cl 7A(1)(a): 14.560 Sch 2, cl 7B: 14.570 Sch 2, cl 7B(5): 14.570 Sch 2, cl 7B(6): 14.570 Sch 2, cl 7C: 14.570 Sch 2, cl 7D: 14.570, 14.1180 Sch 2, cl 7E: 14.570 Sch 2, cl 7F: 14.570 Sch 2, cl 7J: 14.570 Sch 2, cl 8: 15.250 Sch 2, cl 8(1): 14.890 Sch 2, cl 8(1)(c): 15.280 Sch 2, cl 8(1)(j): 15.190 Sch 2, cl 8(2)(b): 14.700 Sch 2, cl 9: 9.700 Sch 2, cl 9(1): 14.890 Sch 2, cl 9(1)(g): 14.990 Sch 2, cl 9(1)(ga): 14.990 Sch 2, cl 9(2)(a): 14.700 Sch 2, cl 9(2)(b): 15.360 Sch 2, cl 9(2B): 14.830 Sch 2, cl 9(3): 14.90 Sch 2, cl 9(4): 14.90 Sch 2, cl 9(5): 14.90 Sch 2, cl 10: 9.700 Sch 2, cl 10(1): 14.890 Sch 2, cl 10(1)(f): 14.990 Sch 2, cl 10(1)(g): 14.990 Sch 2, cl 10(1)(j): 14.660 Sch 2, cl 10(2)(a): 14.700 Sch 2, cl 11(1): 14.910 Sch 2, cl 11(3)(a): 14.990 Sch 2, cl 11(3)(b): 14.990 Sch 2, cl 11(4): 14.990 Sch 2, Pt 2: 14.720 Sch 2, Pt 2, cl 6: 14.720 Sch 2, Pt 3, Div 2: 14.570 Sch 2, Pt 5, cl 9(1)(i): 14.720 Sch 2, Pt 5, cl 9(2)(c): 14.90 Sch 2, Pt 5, cl 9(2AA): 14.90 Sch 2, Pt 6, cl 10(1)(e): 14.1230 Sch 2, cll 7 to 10: 9.440 Sch 4: 14.250, 14.260, 14.270, 14.290, 14.310, 14.330, 14.380 Sch 4, cl 5B: 14.310 Sch 4, cl 5C: 14.320 Sch 4, cl 5D: 14.310 Sch 4, cl 6(3)(k): 14.300 Sch 4, cl 19(3)(k): 14.300 Sch 4, cl 36: 14.300 Sch 4, cl 41: 15.100 Sch 4, cl 62: 14.1420 Sch 4, cl 63: 14.1420 lviii

Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch Sch

4, 4, 4, 4, 5:

Pt 2: 14.260 Pt 3: 14.260 Pt 4A: 14.360 Pt 6: 14.300 9.710, 9.720, 9.770, 9.790, 14.10, 14.50 5, cl 3: 9.720 5, cl 40(1)(b): 9.750 5, cl 40(1)(c): 9.750 5, cl 40(4): 9.750 5, cl 41: 9.750 5, cl 42: 9.750 5, cl 59: 9.770 5, cl 60(1): 9.770 5, cl 60(2): 9.770 5, cl 62: 9.770 5, cl 66: 9.770 5, cl 67: 9.770 5, cll 68 to 72: 9.770 5, cl 73: 9.770 5, cl 88: 9.760 5, cl 91: 3.560, 6.160, 9.760 5, cl 92: 14.1420 5, cl 93: 14.1420 5, cl 94: 14.1370 6: 14.10, 14.1260, 14.1270, 14.1320, 14.1440 6, s 49: 14.1320 6, s 51: 14.1320 6, s 51A: 14.1320 6, cl 2: 14.1270 6, cl 2A: 14.1270 6, cl 3: 14.1280, 14.1290 6, cl 4: 14.1280, 14.1290 6, cl 4(1)(a): 14.1290 6, cl 4(8): 14.1290 6, cl 5: 14.1280 6, cl 6: 14.1260 6, cl 6(4): 14.1280 6, cl 8(1): 14.1270 6, cl 8(2): 14.1270 6, cl 12: 14.1270 6, cl 12A: 14.1270 6, cl 13(4): 14.1280 6, cl 13(5): 14.1280 6, cl 15(4): 14.1280 6, cl 15(5): 14.1280 6, cl 21(4): 14.1280 6, cl 21(5): 14.1280 6, cl 24(1)(a): 14.1300 6, cl 24(4): 14.1300 6, cl 24(5): 14.1300 6, cl 24A: 14.1300 6, cl 24A(b): 14.1280 6, cl 25: 14.1300 6, cl 26: 14.1300

Table of Statutes Broadcasting Services Act 1992 — cont Sch 6, cl 27A: 14.1290 Sch 6, cl 28(1): 14.1310 Sch 6, cl 28(2): 14.1310 Sch 6, cl 35: 14.1310 Sch 6, cl 35A: 14.1310 Sch 6, cl 36: 14.1440 Sch 6, cl 37: 14.1440 Sch 6, cl 37(2): 14.1440 Sch 6, cl 38: 14.1440 Sch 6, cl 41: 14.1270 Sch 6, cl 41(3): 14.1270 Sch 6, cl 52: 14.1320 Sch 6, cl 58: 14.1420 Sch 6, cl 59: 14.1420 Sch 6, Pt 7: 14.1270 Sch 6, Pt 8: 14.1320 Sch 6, cll 7 to 12A: 14.1270 Sch 6, cll 13 to 16: 14.1280 Sch 6, cll 17 to 20AA: 14.1290 Sch 6, cll 21 to 23A: 14.1280 Sch 6, cll 22 to 23A: 14.1290 Sch 6, cll 24(1)(b) to (h): 14.1300 Sch 6, cll 31 to 34: 14.1310 Sch 7: 9.710, 9.770, 9.790, 14.10, 14.50 Sch 7, cl 2: 9.710 Sch 7, cl 3: 9.710 Sch 7, cl 4: 9.710 Sch 7, cl 8: 9.710 Sch 7, cl 14: 9.720 Sch 7, cl 20: 9.720 Sch 7, cl 21: 9.720 Sch 7, cl 37: 9.730 Sch 7, cl 41: 9.730 Sch 7, cl 44: 9.730 Sch 7, cl 47: 9.740 Sch 7, cl 52: 9.740 Sch 7, cl 56: 9.740 Sch 7, cl 59A: 9.740 Sch 7, cl 62: 9.740 Sch 7, cl 67: 9.740 Sch 7, cl 80: 9.770 Sch 7, cl 81: 9.770 Sch 7, cl 85: 9.770 Sch 7, cl 89: 9.770 Sch 7, cl 90: 9.770 Sch 7, cl 96: 9.770 Sch 7, cl 111: 9.760 Sch 7, cl 113: 14.1420 Sch 7, cl 114: 14.1370 Sch 7, cll 91 to 94: 9.770 Pf 9D: 14.740 61AMF 61AMF: 15.290 Broadcasting Services Amendment Act 1998: 14.1240

Broadcasting Services Amendment Act (No 3) 1999: 14.1150 Broadcasting Services Amendment Act 2000: 14.130 Broadcasting Services Amendment Bill 1998: 14.1240 Broadcasting Services Amendment Bill (No 1) 1999: 14.1240 Broadcasting Services Amendment Bill 2000: 14.130 Broadcasting Services Amendment (Digital Television and Datacasting) Act 2000: 14.250, 14.1260 Broadcasting Services Amendment (Media Ownership) Act 2006: 15.30, 15.50, 15.150, 15.160, 15.500 Sch 2: 14.1180, 14.1190, 15.150 Broadcasting Services Amendment (Media Ownership) Bill 2006: 15.160, 15.490, 15.510 Broadcasting Services Amendment (Regional Commercial Radio) Act 2012 Sch 2: 14.1210 Broadcasting Services Amendment (Regional Commercial Radio) Bill 2011: 14.1190 Broadcasting Services Amendment (Subscription Television Drama and Community Broadcasting Licences) Bill 2006: 14.830 Broadcasting Services (Australian Content) Standard 2005: 14.1000, 14.1020, 14.1030 cl 4: 14.1010 cl 6: 14.1040, 14.1060, 14.1070 cl 6(5): 14.1040 cl 6C: 14.1060 cl 7: 14.1200 cl 7(1): 14.1040 cl 7(4): 14.1040 cl 8: 14.1050 cl 10: 14.1060 cl 10(1A): 14.1060 cl 10(2A): 14.1060 cl 10(3): 14.1060 cl 10(4): 14.1060 cl 10(5): 14.1060 cl 10(6): 14.1060 cl 10(7): 14.1060 cl 11: 14.1060 cl 12: 14.1080 cl 12(3): 14.1080 cl 12A: 14.1080 cl 13: 14.1080 lix

Australian Media Law Broadcasting Services (Australian Content) Standard 2005 — cont cl 14: 14.1090 cl 15: 14.1090 cl 16: 14.1070 cl 17: 14.1060 cl 18: 14.1100 cl 19: 14.1100 cl 20: 14.1100 cl 21: 14.1030 Sch 2, Pt 6, cl 10(1B): 14.1230 Broadcasting Services Bill 1992 cl 3: 14.40 cl 6: 14.50 cl 14: 14.80 cl 15: 14.90 cl 17: 14.120 cl 23: 14.170 cl 26: 14.200 cl 54: 15.120 cl 75: 15.340 Pt 5: 15.220 Pt 5, Div 8: 15.310 Pt 10, Div 1: 14.850 Broadcasting Services (Commercial Radio Advertising) Standard 2000: 14.1160 Broadcasting Services (Commercial Radio Advertising) Standard 2012: 14.1160 Broadcasting Services (Commercial Radio Compliance Program) Standard 2000: 14.1160 Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2000: 14.850, 14.1160 Broadcasting Services (Deemed Digital Radio Licence Areas) Determination 2007: 14.440 Broadcasting Services (Hours of Local Content) Regulations 2007: 14.1200, 14.1220 Broadcasting Services Legislation Amendment Bill 1997 Item 2: 15.180 Broadcasting Services (Meaning of Local) Instrument 2007: 14.1220 Broadcasting Services (Media Ownership) Amendment Bill 2006: 15.490 Broadcasting Services (Regional Commercial Radio) Regulation 2013: 14.1210 Broadcasting and Other Legislation Amendment (Deregulation) Bill 2014 lx

item 2: 14.190 Charter of Political Honesty Bill 2000: 4.620 Civil Aviation (Damage by Aircraft) Act 1958: 8.720 Classification (Publications, Films and Computer Games) Act 1995: 9.640, 9.650, 9.690, 10.290, 14.10, 14.810, 14.950 s 9A: 9.690, 10.290 s 9A(2): 9.690, 10.290 s 9A(3): 9.690, 10.290 s 11: 9.660 s 39: 9.680 s 42: 9.680 Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Act 2007: 9.690, 10.290 Commonwealth Electoral Act 1918: 4.580, 4.620 s 4(1): 4.610 s 4(9): 4.610 s 161: 4.620 s 328(1): 4.610 s 328(1)(b): 4.610 s 328(1A): 4.610 s 328(3): 4.610 s 328(5): 4.610 s 328A: 4.610 s 328A(2): 4.610 s 328A(3): 4.610 s 329: 4.620 s 329(2): 4.620 s 331: 4.610 s 350: 4.630 Commonwealth Electoral Legislation Amendment Act 1983: 4.620 Commonwealth of Australia Constitution Act 1901: 2.80, 2.90, 2.100, 3.730, 3.970, 3.990, 3.1100, 4.170, 4.240, 6.780 s 1: 2.90 s 6: 2.90 s 7: 2.90, 3.970 s 8: 2.90 s 13: 2.90 s 24: 2.90, 3.970 s 25: 2.90 s 28: 2.90 s 30: 2.90 s 49: 2.90, 4.170, 4.240 s 51(xxxvi): 4.170 s 51(xxxix): 4.170 s 51(xxix): 14.20 s 51(i): 14.20 s 51(v): 13.440, 14.20, 14.1400

Table of Statutes Commonwealth of Australia Constitution Act 1901 — cont s 51(xx): 14.20 s 57: 4.80 s 62: 2.90 s 64: 2.90 s 71: 5.40 s 83: 2.90 s 92: 13.480 s 122: 14.20 s 128: 2.90, 3.970 Ch III: 2.90, 4.170, 5.40 Communications Legislation Amendment Bill (No 1) 1997: 14.90 Communications Legislation Amendment (Content Services) Act 2007: 9.710 Communications Legislation Amendment (Enforcement Powers) Act 2006: 14.840 Communications Legislation Amendment (Enforcement Powers) Bill 2006: 14.840, 15.330 Competition and Consumer Act 2010: 14.970, 14.1460, 15.30, 15.40, 15.50, 15.160, 15.360, 15.370, 15.380, 15.390, 15.400, 15.410, 15.460, 15.490 s 6: 3.1410, 13.20 s 50: 15.150, 15.370, 15.400, 15.410, 15.420, 15.430, 15.440, 15.450, 15.490 s 50(3): 15.400, 15.460, 15.490 s 50(6): 15.400 s 51(1)(a): 14.970 s 87B: 15.420, 15.430 s 95AZ: 15.440 s 95AZH(1): 15.440 s 95AZH(2): 15.440 s 106: 5.570 s 131: 13.20 Pt IV: 14.970 Pt VII, Div 3, subdiv B: 15.430 Pt VII, Div 3, subdiv C: 15.440 Schedule 2 Australian Consumer Law: 3.1410, 8.890, 13.20, 13.40, 13.100, 13.150, 13.160, 13.170, 13.220, 13.230, 13.250, 13.260, 13.270, 13.280, 13.290, 13.300, 13.310, 13.410, 13.430 s 2: 3.1420, 13.20, 13.40, 13.230, 13.360 s 9: 3.1410 s 18: 3.1370, 3.1400, 3.1410, 3.1420, 3.1430, 3.1450, 8.890, 8.990, 13.20, 13.30, 13.40, 13.60, 13.190, 13.230, 13.350, 13.360, 13.410 s 19: 3.1420, 3.1430, 8.910, 13.410, 13.420

s 19(2): 3.1430 s 19(4): 3.1450, 13.410 s 19(5): 3.1420 s 19(6): 3.1420 s 29: 3.1420, 8.990, 13.120, 13.410 s 29(1)(a): 13.120, 13.230 s 29(1)(b): 13.130 s 29(1)(c): 13.140 s 29(1)(d): 13.150 s 29(1)(e): 13.160 s 29(1)(f): 13.160 s 29(1)(g): 13.170, 13.430 s 29(1)(h): 13.180, 13.430 s 29(1)(i): 13.190, 13.400 s 29(1)(j): 13.200 s 29(1)(k): 13.210 s 29(1)(l): 13.240 s 29(1)(m): 13.250 s 29(2): 13.160 s 29(3): 13.160 s 30: 13.270 s 31: 13.280 s 32(1): 13.300 s 32(2): 13.300 s 33: 13.300 s 34: 13.300 s 35: 13.300 s 36: 13.300 s 37: 13.290 s 38: 3.1420, 13.410 s 38(3): 3.1450, 13.410 ss 39 to 43: 13.300 ss 44 to 46: 13.300 s 49: 13.300 s 54: 13.250 s 151(1)(a): 13.230 s 151(1)(k): 13.230 ss 151(1)(g) to (h): 13.430 ss 151 to 167: 13.350 s 160: 13.410 s 160(4): 3.1450, 13.410 ss 161 to 163: 13.300 ss 207 to 208: 13.390 s 209: 13.390, 13.400 s 224(2): 13.350 s 227: 13.350 s 232: 13.320, 13.370 s 236: 13.330 s 237: 13.340 s 243: 13.340 s 247: 13.370 s 255: 13.230 s 255(3): 13.230 s 256: 13.230 Copyright Act 1968: 12.60, 12.160, 12.230 lxi

Australian Media Law Copyright Act 1968 — cont s 10(1): 12.70, 12.90, 12.120, 12.160, 12.180, 12.200, 12.230 ss 10(2) to (2C): 12.410 s 14(1): 12.300 s 22(3)(b): 12.210 s 22(4)(b): 12.210 s 22(5): 12.210 s 29: 12.50 s 31: 12.200 s 31(1)(a)(iv): 12.200 s 32: 12.100 s 32(4): 12.50 s 33(2): 12.130 s 33(3): 12.130 s 33(5): 12.130 s 35(2): 12.210 s 35(3): 12.210 s 35(4): 12.220 s 35(5): 12.210 s 35(6): 12.220 s 35(7): 12.200, 12.210 s 36(1): 12.360 s 36(1A): 12.360 s 39A(b): 12.360 s 40: 12.410 s 41: 12.410 s 41A: 12.410 s 42: 12.410 s 43: 12.410 s 43C: 12.420 ss 44A to 44F: 12.420 s 84: 12.50 s 85: 12.120, 12.200 s 86: 12.120, 12.200 s 87: 12.120, 12.200 s 88: 12.120, 12.200 s 89: 12.50, 12.120 s 90: 12.50, 12.120 s 91: 12.50, 12.120 s 92: 12.120 s 93: 12.140 s 94: 12.140 s 95: 12.140 s 96: 12.140 s 97(3): 12.210 ss 97 to 99: 12.210 s 98(3): 12.210 s 98(4): 12.210 s 98(5): 12.210 s 100: 12.210 s 101(1): 12.360 s 101(1A): 12.360 s 103A: 12.410 s 103B: 12.410 s 103C: 12.410 lxii

s 103AA: 12.410 s 104: 12.410 s 104B(b): 12.360 s 109A: 12.420 s 110AA: 12.420 s 111: 12.420, 12.430 s 112D: 12.420 s 112DA: 12.420 s 189: 12.190 s 190: 12.190 s 195AA: 12.190 s 195AB: 12.190 ss 195AJ to 195AL: 12.190 s 195AN: 12.190 s 195AO: 12.190 s 195AP: 12.190 s 195AQ: 12.190 s 195AR: 12.190 s 195AS: 12.190 s 195AW: 12.190 s 195AWA: 12.190 s 196(1): 12.230 s 196(2): 12.230 Pt VIII: 12.50 Pt V, Div 2: 12.340 Pt V, Div 5: 12.340 Pt V, Div 7: 12.340 Pt IV: 12.120 Pt IX, Div 2: 12.190 Pt IX, Div 3: 12.190 Pt IX, Div 4: 12.190 Pt VA: 12.230 Pt VB: 12.230 Pt III: 12.70 Pt XIA: 12.10 Div 4A: 12.420 Copyright (International Protection) Regulations 1969: 12.50 Copyright Regulations 1969 reg 4B: 12.360 reg 17A: 12.360 Sch 3: 12.360 Corporations Act 2001: 3.820, 14.690 Pt 2A.2: 14.130, 14.690, 14.1270 Pt 8B, Div 4A: 14.130 Court Information Act 2010: 5.680 Court Security Act 2013 s 17: 5.640 s 18: 5.640 Crimes Act 1914: 7.550, 10.20, 10.60, 10.70, 10.220 s 3ZQN: 10.150 s 3ZQP: 10.150

Table of Statutes Crimes Act 1914 — cont ss 3ZQP(a) to (c): 10.150 s 3ZQP(d): 10.150 s 3ZQP(e): 10.150 ss 3ZQP(f) to (g): 10.150 ss 3ZQP(h) to (i): 10.150 ss 3ZQP(j) to (k): 10.150 s 3ZQR: 10.150 s 3ZQS: 10.150 s 3ZQT: 10.150 s 7A: 10.60 s 15HK: 10.220 s 15HL: 10.220 s 15YP: 5.570 s 15YR: 5.570 s 20C(1): 5.570 s 24: 10.60 ss 24A to 24F: 10.60 s 24AA: 10.60 s 24AB: 10.60 s 25: 10.60 s 70(1): 7.560 s 79: 10.20 s 85B: 5.570 Criminal Code s 7.3: 9.690, 10.290 ss 80.2 to 80.3: 2.110 s 141.1: 4.400 s 142.1: 4.400 Criminal Code 1995: 10.20 s 13.3(6): 10.120 s 80.1: 10.70 s 80.2: 10.70, 10.80 s 80.2(1): 10.80 s 80.2(2): 10.80 s 80.2(3): 10.80 s 80.2(4): 10.80 s 80.2(5): 9.450 s 80.2A: 10.80 s 80.2A(1): 10.80 s 80.2A(2): 10.80 ss 80.2A to 80.2B: 9.30, 9.500 s 80.2B: 10.80 s 80.2B(1): 10.80 s 80.2B(2): 10.80 s 80.3: 10.90 s 80.3(a): 10.90 s 80.3(b): 10.90 s 80.3(c): 10.90 s 80.3(d): 10.90 s 80.3(e): 10.90 s 80.3(f): 10.90 s 91.1: 10.20 s 93.2: 5.570 s 101.1: 9.690, 10.250, 10.260

s 101.5: 10.120, 10.130 s 101.5(5): 10.120, 10.130 s 102.1: 10.210 s 102.1(1): 10.110 s 102.1(1A): 9.690, 10.290 ss 102.1(1A) to (2A): 10.110 s 102.4: 10.210 s 102.6: 10.200 s 102.7: 10.110 s 102.8: 10.110 s 102.8(5): 10.110 s 103: 10.200 s 105.4: 10.170 s 105.7: 10.170 s 105.41: 10.170 s 105.41(6): 10.170 s 119.2: 10.230 s 119.2(3): 10.230 s 119.7: 10.210 s 119.7(2): 10.210 s 119.7(3): 10.210 Pt 5.1: 10.80 Div 105: 10.170 Criminal Procedure Further Amendment (Evidence) Bill 2005: 5.570 Customs (Prohibited Imports) Regulations: 9.440 Datacasting Charge (Imposition) Act 1998: 14.300, 14.1260 Electoral Amendment (Political Honesty) Bill 2000: 4.620 Electoral and Referendum Amendment Act 1984: 4.620 Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006 cl 72: 4.610 cl 75: 4.610 cl 76: 4.610 Electoral and Referendum Legislation Amendment Act 2007: 4.630 Evidence Act 1995: 7.680 s 4: 7.680 s 126G: 7.660 s 126G(1): 7.670 s 126H: 7.660, 7.680 s 126H(1): 7.670 s 126H(2): 7.670 s 129: 5.820 s 131A: 7.660, 7.680 s 131B: 7.660 Evidence Amendment (Journalists’ Privilege) Act 2007: 7.650 lxiii

Australian Media Law Evidence Amendment (Journalists’ Privilege) Act 2011: 7.650

Foreign Acquisitions and Takeovers (Notices) Regulations 1975: 15.510

Evidence Amendment (Journalists’ Privilege) Bill 2011: 7.660, 7.670

Foreign Acquisitions and Takeovers Regulations 1989: 15.510 s 12: 15.510

Explanatory Memorandum to the Broadcasting Legislation Amendment (Digital Radio) Bill 2007 Item 18: 14.500 Fair Work Act 2009 s 577: 5.570 s 593: 5.570 s 594: 5.570 s 601: 5.570 Family Court of Australia 1975 s o7(1A): 5.400 s 97(1): 5.400 s 97(2): 5.400 Pt XIA: 5.400 Family Law Act 1975: 5.40 s 21(2): 6.40 s 97: 5.570 s 121: 5.570 Pt XIA: 5.570 Family Law Rules 2004 r 24.13: 5.675 Federal Circuit Court of Australia Act 1999 s 13(1): 5.400 s 13(2): 5.400 s 13(7): 5.400 Pt 6A: 5.400 Federal Court Rules 2011 r 2.32: 5.675 r 2.32(2): 5.675 r 2.32(3): 5.675 r 2.32(4): 5.675 r 6.11: 5.640 r 7.22: 7.590 r 20.03: 5.770 Federal Court of Australia Act 1976 s 5(2): 6.40 s 17(1): 5.400 s 17(4): 5.400 Pt VAA: 5.400 Foreign Acquisitions and Takeovers Act 1975: 14.1460, 15.40, 15.120, 15.510 s 5: 15.510 s 9: 15.510 s 17H: 15.510 s 18: 15.510 lxiv

Freedom of Information Act 1982: 7.20 s 7: 7.40 s 11: 7.20 s 15(5): 7.30 s 34: 7.40 Sch 2, Pt I: 7.40 High Court Rules 2004 r 4.07.4: 5.675 r 41.05: 5.660 r 41.06: 5.660 r 41.07: 5.660 High Court of Australia Act 1979 s 5: 6.40 Human Cloning and Other Prohibited Practices Amendment Bill 2007: 4.440 Human Rights and Equal Opportunity Commission Act 1986 s 46P: 9.360 s 46PH: 9.360 s 46PO(4): 9.360 Industrial Relations Act 1988: 6.940 Intelligence Security (Consequential Amendments) Act 1986 ss 1 to 14: 10.60 Intelligence Services Act 2001 s 41: 10.20 Judiciary Act 1903 s 15: 5.400 s 16: 5.400 s 78B: 6.940 Pt XAA: 5.400 Jury Exemption Act 1965: 4.240 Legislative Assembly Privileges Bill (1998): 4.300 Listening Devices Act: 8.110 Migration Act 1958 s 365: 5.570 s 378: 5.570 National Classification Code 2005: 9.660 National Security Information (Criminal and Civil Proceedings) Act 2004 Pt 3: 5.570 Pt 3A: 5.570

Table of Statutes National Security Legislation Amendment Act 2010: 10.80

Political Broadcasts and Political Disclosures Act 1991: 2.100, 4.600

News Media (Self-regulation) Bill 2013: 14.10

Privacy Act 1988: 8.20, 8.30, 14.1520 s 6: 8.40 s 6(1): 8.20, 8.30 s 6D: 8.30 s 7B(4): 8.40, 14.1520 s 41(2)(a): 8.50 s 52: 8.50 Sch 1: 8.30

News Media (Self-regulation) (Consequential Amendments) Bill 2013: 14.10 Northern Territory (Self-Government) Act 1978 s 12: 4.230 Olympic Insignia Protection Act 1987: 13.430 Parliamentary Papers Act 1908: 4.240 s 4: 4.70 Parliamentary Precincts Act 1988 s 6: 4.560 Parliamentary Privileges Act 1987: 4.90, 4.240, 4.300, 4.310, 4.490 s 3: 4.30, 4.90 s 4: 4.200 s 5: 4.240 s 6(2): 4.390 s 7(1): 4.240 s 7(2): 4.240 s 7(5): 4.240 s 9: 4.210, 4.240 s 10: 4.40 s 12(1): 4.490 s 12(2): 4.490 s 12(3): 4.490 s 13: 4.480 s 16: 4.30, 4.70, 4.90, 4.140, 4.160, 4.170 s 16(1): 3.730, 4.90 s 16(2): 4.160 s 16(2)(c): 4.160 s 16(3): 3.730, 4.90, 4.130, 4.140, 4.170, 4.500 s 16(3)(a): 4.90 s 16(3)(b): 4.90 s 16(3)(c): 4.90 s 16(4): 4.90 s 16(5): 4.80 s 16(6): 4.80 Parliamentary Privileges Bill 1987: 4.90 cl 6: 4.390 Parliamentary Proceedings Broadcasting Act 1946: 4.240, 4.530, 4.540, 14.70 s 4(1): 4.530 s 4(2): 4.540 s 4(3): 4.540 s 12: 4.530 s 14: 4.530 s 15: 4.40, 4.530 s 16: 4.590, 4.640

Privacy Amendment Act 2000: 8.20 Privacy Amendment (Enhancing Privacy Protection) Bill 2012: 8.30 Provisions of the Government Advertising (Objectivity, Fairness and Accountability) Bill 2000: 4.620 Public Governance, Performance and Accountability Act 2013: 14.70 Public Interest Disclosure Act 2013 s 10: 7.500 Public Interest Media Advocate Bill 2013: 14.10 Public Service Act 1999: 14.1360 Racial Discrimination Act 1975: 9.30, 9.180, 9.250 s 18C: 2.110, 9.30, 9.70, 9.80, 9.190, 9.290, 9.300, 9.310, 9.360 s 18C(2): 9.40 s 18D: 9.30, 9.290, 9.300, 9.310, 9.350, 9.360 s 18F: 9.20 Radio Licence Fees Act 1964: 14.20 Radiocommunications Act 1992: 14.10, 14.20, 14.160, 14.200, 14.230, 14.450, 14.470, 14.480, 14.530, 14.650, 14.1260, 14.1270, 14.1340, 17.750 s 5: 14.470, 14.1340 s 9C: 14.470 s 31(1): 14.160 s 31(1A): 14.160, 14.660, 14.740 s 31(1C): 14.160 s 44A: 14.450 s 98A: 14.1340 s 98B: 14.1340 s 98C: 14.460, 14.470 s 98D: 14.460, 14.470 s 98E: 14.460 s 100: 14.230 s 100A: 14.1260, 14.1270 s 101A: 14.650 s 102: 14.530, 14.630, 14.760 lxv

Australian Media Law Radiocommunications Act 1992 — cont s 102(3): 14.1260 s 102(3): 14.1270 s 102(5): 14.1260 s 102(5): 14.1270 s 102C: 14.470 s 102C(3): 14.470 s 102C(4): 14.470 s 102D: 14.470 s 102E: 14.470 s 102F: 14.460 s 103(6): 14.450 s 106: 14.470, 14.660, 14.670 s 108A(1)(d): 14.210 s 109: 14.530 s 109(1)(d): 14.200 s 109(1)(e): 14.210 s 109A: 14.1300, 14.1340 s 109A(1)(h): 14.1340 s 109A(1)(ia): 14.1340 ss 109A(1)(ib) to (ie): 14.1340 s 109A(ia): 14.1340 s 109B: 14.450 s 118P: 14.480 s 118ND: 14.480 s 118NF: 14.480 s 118NJ: 14.480 s 118NK: 14.480 s 118NL: 14.480 s 118NM: 14.480 s 118NN: 14.480 s 118NQ: 14.480 s 118NR: 14.480 s 118NS: 14.480 s 118NT: 14.480 s 118NU: 14.480 s 118NV: 14.480 s 118NZ: 14.480 Referendum (Machinery Provisions) Act 1984: 4.580 s 121(1): 4.610 s 121(1A): 4.610 s 121(3): 4.610 s 121A: 4.610 s 121A(2): 4.610 s 121A(3): 4.610 s 122: 4.620 s 124: 4.610 Royal Commissions Act 1902 s 6O(1): 6.50 s 7: 3.740 Special Broadcasting Service Act 1991: 14.20 s 6: 14.70 s 6A: 14.70, 14.300 s 10(1)(j): 14.70, 14.1310 lxvi

s s s s s s s s s s

12: 14.740 45: 14.70 48: 14.70 70: 14.70 70A(1): 4.590 70A(2): 4.640 70A(3): 4.640 70A(5): 4.640 70B: 4.640 70C: 4.600

Statute Law (Miscellaneous Provisions) Bill (No 2) 1984: 3.1420 Statutory Rules 1935: 15.20 Supreme Court (General Civil Procedure) Rules 2005 s 80: 6.100 Sydney 2000 Games (Indicia and Images) Protection Act 1996: 13.430 s 8: 13.430 s 9: 13.430 s 24: 13.430 Telecommunications Act 1997: 14.10, 14.20 Telecommunications (Interception and Access) Act 1979: 8.80, 8.100, 8.110 s 5: 8.90 s 6(1): 8.90 s 7(1): 8.90 ss 7(2) to (5): 8.130 s 63: 8.120 s 105: 8.140 s 107A: 8.140 Television Broadcasting Services (Digital Conversion) Act 1998: 14.250 Television Broadcasting Services (Digital Conversion) Bill 1998: 14.240 Television Licence Fees Act 1964: 14.20 Television Licence Fees Amendment Act 2013: 14.10 Television Licence Fees Amendment Bill 2013: 14.10, 15.530 Therapeutic Goods Act 1989: 13.490, 14.720 Tobacco Advertising Prohibition Act 1992: 13.440, 14.740 s 6: 13.460 ss 6(2) to (3): 13.460 s 8: 13.440 s 9(1): 13.440 s 13: 13.440 s 14: 13.460

Table of Statutes Tobacco Advertising Prohibition Act 1992 — cont s 15: 13.440 s 16: 13.460 s 17: 13.460 s 18: 13.460 s 19: 13.460 s 20: 13.460 s 21: 13.460 s 22: 13.460 Trade Practices Act 1974: 13.20, 13.190, 15.30, 15.380 s 29(1)(k): 13.220 s 52: 3.1440 s 65A: 3.1440 Trade Practices (Origin Labelling) Bill 1994: 13.210 US Free Trade Agreement Implementation Act 2004: 14.1120 Sch 9, Pt 6: 12.150 Wireless Telegraphy Act 1905: 15.20 Witness Protection Act 1994 s 28: 5.570

AUSTRALIAN CAPITAL TERRITORY Adoption Act 1993 s 60: 5.570 s 96: 5.570 s 97: 5.570 s 112: 5.570 s 113: 5.570 s 114: 5.570, 5.675 Children and Young People Act 2008 s 77: 5.570 s 710: 5.570 Civil Laws (Wrongs) Act 2002 s 34: 11.70, 11.170 s 35(1): 11.70 ss 42 to 43: 11.80 s 45: 11.90 s 118: 3.30 s 119: 3.70 s 121: 3.520, 3.1410 s 122(b): 3.550 s 123(2): 3.480 s 123(3): 3.40 s 126(2): 3.580 s 127: 3.580 s 128: 3.580 s 129: 3.580 s 130: 3.580, 3.600, 3.620

s 132: 3.630 s 134: 3.30 s 134(1): 3.640 s 134(2): 3.1090 s 135: 3.650 ss 135 to 139D: 3.640 s 136: 3.710 s 137: 3.720, 4.40 s 137(2)(a): 3.730, 4.70 s 137(2)(b): 3.740 s 138: 3.790, 4.70 s 138(4): 3.790 s 139: 3.820, 3.830, 4.40 s 139(3): 3.850 s 139A: 3.1050 s 139A(4): 3.1090 s 139B: 3.1180 s 139B(2): 3.1180 s 139B(3): 3.1180 s 139B(4): 3.1220 s 139C: 3.1250 s 139D: 3.1280 s 139E: 3.1330 s 139F: 3.1330 s 139F(2): 3.1340 s 139G: 3.1330 s 139H: 3.1350 s 139I: 3.1360 s 139K: 3.1380 s 139M: 3.670 Ch 9: 3.30 Civil and Administrative Tribunal Act 2008 s 71: 9.360 Classification (Publications, Films and Computer Games) (Enforcement Act) 1995: 9.640 s 9: 9.670 s 16: 9.670 s 22: 9.670 s 26: 9.670 s 27: 9.670 Coroners Act 1997 s 4(3): 6.40 s 40: 5.570 s 99A: 6.50 s 99A(2): 6.50 Court Procedures Act 2004 s 41: 5.410 s 50: 5.410 s 72: 5.570 Court Procedures Rules 2006 r 29.03(2): 5.675 r 40.53(2): 5.675 r 650: 7.590 lxvii

Australian Media Law Crimes Act 1900 s 439: 3.1470 s 439(1): 3.1480, 3.1510, 3.1530, 3.1540 s 439(2): 3.1520 s 439(4): 3.1550 s 439(8): 3.1490, 3.1500 Criminal Code 2002 s 712A: 5.570 Discrimination Act 1991 s 4: 9.190 s 66: 9.30 s 67: 9.30 Domestic Violence and Protection Orders Act 2008 s 111: 5.570 s 112: 5.570 Electoral Act 1992: 4.580 ss 291 to 295: 4.610 s 292: 4.610 s 296: 4.610 s 297: 4.620 s 298: 4.620 s 300: 4.630

s 35: 7.40 Human Rights Act 2004: 5.20 s 16: 6.940 s 21: 4.180 Information Privacy Act 2014: 8.60 Juries Act 1967 s 42C: 5.830, 5.840 s 42C(2): 5.830, 5.840 s 42C(3): 5.830, 5.840 s 42C(4): 5.830, 5.840 ss 42C(5)(a) to (c): 5.830 s 42C(5)(d): 5.830 s 42C(5)(e): 5.830 ss 42C(6)(a) to (c): 5.830 s 42C(6)(d): 5.830 s 42C(7)(a): 5.830 s 42C(7)(b): 5.830 s 42C(8)(a): 5.840 s 42C(8)(b): 5.840 s 42C(10): 5.830 s 42C(11): 5.830 Law Reform (Repeal and Consolidation) 1996 s 4: 9.440

Electoral Legislation Amendment Bill 2007 cl 100: 4.610

Legislative Assembly (Broadcasting) Act 2001: 4.570

Evidence Act 2011 s 4: 7.680 ss 126A to 126F: 7.650 s 126J: 7.670 ss 126J to 126L: 7.660 s 126K(1): 7.670 s 126K(2): 7.670 s 131A: 7.660, 7.680

Listening Devices Act 1992: 8.80, 8.150 s 2: 8.170 s 4: 8.280 s 4(1): 8.210 s 4(2): 8.320 s 4(3)(b): 8.250 s 5(2): 8.270 s 6(1): 8.260, 8.330 s 6(2): 8.360 s 6(2)(a)(iv): 8.360 s 6(2)(b): 8.360

Evidence Amendment Act 2011: 7.650 Evidence (Miscellaneous Provisions) Act 1991 s 37: 5.570 s 38: 5.570 s 39: 5.570 s 40: 5.570 s 40R: 5.570 s 81D: 5.410 s 110: 5.410, 5.570 s 111: 5.410, 5.570 s 111(4): 5.410 s 112: 5.410, 5.570

Magistrates Court Act 1930 s 310(1): 5.410 s 310(2)(a): 5.410 s 310(2)(b): 5.410 s 310(2)(c): 5.410 s 310(4): 5.410 Public Interest Disclosures Act 2012 s 15: 7.500 s 35: 3.770, 7.500

Fair Trading Act 1992 s 7: 3.1410, 8.890, 13.20

Royal Commissions Act 1991 s 19: 3.740

Freedom of Information Act 1989: 7.20 s 10: 7.20 s 18: 7.30

Supreme Court Act 1933 s 3(2): 6.40 s 22: 3.300

lxviii

Table of Statutes Tobacco Act 1927 s 10: 13.460 Witness Protection Act 1996 s 16: 5.570 Wrongs Act 2002 s 59: 8.980

NEW SOUTH WALES

Civil Liability Act 2002 s 5B: 11.80 s 5D: 11.90 s 31: 11.70 s 32: 11.70, 11.170 s 74: 8.1000, 8.1060 s 74(4): 8.1100 s 75: 8.1110 s 75(1)(d): 8.1100 s 76: 8.1120

Adoption Act 2000 s 119: 5.570 s 143: 5.570, 5.675 s 176: 5.570 ss 178 to 180A: 5.570 s 186: 5.570 s 194: 5.570, 5.675 s 205: 5.570

Civil Procedure Act 2005: 5.420, 5.680 s 71: 5.420

Anti-Discrimination Act 1977: 3.720, 9.220 s 4: 9.190 s 20B: 9.40 s 20C: 9.30, 9.170 s 20C(2): 9.290 s 20D: 9.30 ss 38S to 38T: 9.520 ss 49ZT to 49ZTA: 9.520 ss 49ZXB to 49ZXC: 9.520 s 52: 9.280 s 53: 9.280 s 113: 9.360

Coroners Act 2009 s 47: 5.570 ss 73 to 77: 5.570 s 103: 6.50

Anti-Discrimination (Amendment) Act 1994: 9.220 Anti-Discrimination (Homosexual Vilification) Amendment Act 1993: 9.220 Bail Act 2013: 5.630 Child Protection (Offenders Prohibition Orders) Act 2004 s 14: 5.570 s 16H: 5.570 s 18: 5.570 Children (Criminal Proceedings) Act 1987: 5.570, 5.630 s 4: 5.570 s 10: 5.570 ss 15A to 15G: 5.570 Children and Young Persons (Care and Protection) Act 1998: 5.630 s 92: 5.570 s 104: 5.570 s 104A: 5.570 s 104B: 5.570 s 104C: 5.570 s 105: 5.570

Classification (Publications, Films and Computer Games) Enforcement Act 1995: 9.640 s 6: 9.670 s 17: 9.670 s 18: 9.670

Court Information Act 2010: 5.680, 5.700 s 3(d): 5.700 s 4: 5.700 s 5(1): 5.700 s 5(2): 5.700 s 6(1): 5.700 s 6(2): 5.700 s 8(1): 5.700 s 9(1): 5.700 s 9(2): 5.700 s 10: 5.700 s 10(5): 5.700 s 18(1): 5.700 s 18(2): 5.700 Court Security Act 2005: 5.420 s 6: 5.420 s 7: 5.420 s 9: 5.590 s 9A: 5.640 Court Security Regulation 2011 reg 6: 5.590 reg 6B: 5.640 Court Suppression and Non-publication Orders Act 2010: 5.160, 5.200, 5.220, 5.390, 5.420, 5.430 s 3: 5.420, 5.440 s 4: 5.420, 5.440 s 5: 5.420 s 6: 5.420 s 7: 5.200, 5.220, 5.420 s 7(a): 5.420 lxix

Australian Media Law Court Suppression and Non-publication Orders Act 2010 — cont s 8: 5.420, 5.440 s 8(1)(a): 5.420, 5.430, 5.440 s 8(1)(c): 5.440 s 8(1)(d): 5.440 s 8(1)(e): 5.400, 5.440 s 9(1): 5.440 s 9(2): 5.440 s 9(3): 5.440 s 9(4): 5.440 s 9(5): 5.440 s 10: 5.440 s 11: 5.440 s 12: 5.440 s 13: 5.440 s 13(2): 5.440 s 14: 5.440 s 15(b): 5.420 s 16(1): 5.440 s 16(2) to (4): 5.440 Court Suppression and Non-publication Orders Bill 2010: 5.420 Courts Legislation Amendment (Broadcasting Judgments) Act 2014: 5.630 Crimes Act 1900 s 21J: 8.1170 s 529: 3.1470 s 529(3): 3.1480, 3.1510, 3.1530, 3.1540 s 529(4): 3.1520 s 529(7): 3.1550 s 529(11): 3.1490, 3.1500 s 574: 9.440 s 578A: 5.570 s 578C: 9.530 Pt 4A: 4.400 Crimes (Forensic Procedures) Act 2000: 5.630 Crimes (High Risk Offenders) Act 2006: 5.630 Crimes (Personal and Domestic Violence) Act 2007 s 45: 5.570 s 58: 5.570 Criminal Procedure Act 1986: 5.680 s 56: 5.420 s 56(3): 5.420 s 191: 5.420 s 291: 5.570 s 291A: 5.570 s 291B: 5.570 s 291C: 5.570 s 314: 5.675 Criminal Records Act 1991: 5.675 lxx

Damage by Aircraft Act 1952: 8.720 Defamation Act 1974 s 3: 3.30 s 9: 3.700 s 15: 8.980 s 16(2): 3.710 s 22: 3.1000, 3.1010, 3.1050, 3.1080, 3.1100 s 22(2A): 3.1100 s 49(1): 9.440 Defamation Act 2005: 3.30, 4.40 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 9(2)(a): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280

Table of Statutes Defamation Act 2005 — cont s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 District Court Act 1973 s 177: 5.630 s 178: 5.630 s 179: 5.630 Electronic Transactions Act 2000: 5.420 Evidence Act 1995: 7.650 s 4: 7.680 ss 126A to 126F: 7.650 s 126J: 7.670, 7.700 ss 126J to 126L: 7.660 s 126K(1): 7.670 s 131A: 7.660, 7.680 Evidence Amendment (Confidential Communications) Act 1997: 7.650 Fair Trading Act 1987 s 28: 3.1410, 8.890, 13.20 Freedom of Information Act 1982 s 5: 7.20 Government Information (Public Access) Act 2009: 7.20, 7.30 s 6: 7.30 s 7: 7.30 s 8: 7.30 s 9: 7.30 s 57: 7.30 Sch 1: 7.40 Imperial Act Application Act 1969 s 6: 3.730 Inclosed Lands Protection Act 1901 s 4: 8.780 s 4A: 8.780 Indecent Articles and Classified Publications Act 1975: 9.810 Independent Commission Against Corruption Act 1988 s 31: 5.570 s 31A: 5.570 s 112: 5.570

s 113: 5.570 Industrial Relations Act 1996 s 164: 6.50 s 180: 6.50 Jury Act 1977 s 55D: 6.120 s 68: 5.840 s 68A: 5.830 s 68A(1): 5.830 s 68A(3): 5.830 s 68A(4): 5.830 s 68B: 5.830 s 68B(1): 5.830 s 68B(2): 5.830 s 68C: 6.800 Law Enforcement (Controlled Operations) Act 1997 s 28: 5.570 Law Enforcement and National Security (Assumed Identities) Act 2010 s 34: 5.570 Legal Profession Act 2004: 3.720 Listening Devices Act 1984: 8.200, 8.290 Parliamentary Electorates and Elections Act 1912: 4.580 s 151A(1)(a): 4.620 s 151A(1)(b): 4.620 s 151E: 4.610 s 151EA: 4.610 Parliamentary Evidence Act 1901: 4.250 s 4: 4.250, 4.350 s 7: 4.250 s 8: 4.250 s 9: 4.250 s 11: 4.250, 4.350 s 12: 4.40 s 13: 4.350 s 14: 4.250 Parliamentary Papers (Supplementary Provisions) Act 1975 s 6: 4.70 s 7: 4.70 Parliamentary Privileges Bill 2010: 4.250 cl 7: 4.90 Police Regulation (Allegations of Misconduct) Act 1978: 5.260 Printing and Newspapers Act 1973: 14.1470 s 2: 14.1480 s 3(1)(a): 14.1480 lxxi

Australian Media Law Printing and Newspapers Act 1973 — cont s 3(1)(b): 14.1480 s 3(1)(d): 14.1480 s 3(2): 14.1480 s 3(3)(b): 14.1480 s 3(4): 14.1480 s 4(1): 14.1490 s 4(2): 14.1490 s 4(3)(b): 14.1490 Privacy and Personal Information Protection Act 1998: 8.60 Proposed Civil Liability Act 2002 : 8.1100 Protected Disclosures Act 1994 s 21: 3.770 Public Interest Disclosures Act 1994: 3.720 s 19: 7.500 s 21: 7.500 Royal Commissions Act 1923 s 6: 3.740 s 7(3): 3.740 Supreme Court Act 1970 s 22: 6.40 s 101(5): 6.20 s 101(6): 6.20 s 126: 5.630 s 127: 5.630 s 128: 5.630 Surveillance Devices Act 2007: 8.80, 8.150, 8.370 s 4: 8.370 s 5(2): 8.320 s 7(3): 8.380 ss 7 to 8: 8.370 s 11: 8.390 s 11(2): 8.400 Terrorism (Police Powers) Act 2002: 10.170 s 26P: 5.570 s 27Y: 5.570 s 27ZA: 5.570 Uniform Civil Procedure Rules 2005: 3.700, 7.630 r 5(2): 7.590 r 5.2: 7.620, 7.630 r 21.7: 5.730, 5.770 r 36.12(1): 5.675 r 36.12(2)(b): 5.675 Witness Protection Act 1995 s 16: 5.420 s 26: 5.570 lxxii

Young Offenders Act 1997 s 65: 5.570

NORTHERN TERRITORY Adoption s 59: s 60: s 70: s 71: s 72: s 79:

of Children Act 5.570 5.570, 5.675 5.570 5.570 5.570 5.570

Care and Protection of Children Act 2007 s 99: 5.570 s 301: 5.570 Child Protection (Offender Reporting and Registration) Act s 86: 5.570 s 88: 5.570 Classification of Publications, Films and Computer Games Act: 9.640 s 37: 9.670 s 38: 9.670 s 45: 9.670 s 49: 9.670 s 50B: 9.670 s 53: 9.670 Consumer Affairs and Fair Trading Act s 27: 3.1410, 8.890, 13.20 Coroners Act s 42: 5.570 s 43: 5.570 s 46: 6.50 Court Security Act 1998: 5.450 s 17: 5.450 Criminal Code: 9.440 s 44: 10.60 s 125C: 9.530 s 203: 3.1490, 3.1500, 3.1510, 3.1520 s 204: 3.1470, 3.1480, 3.1530, 3.1540 s 208: 3.1550 s 428: 5.675 Defamation Act: 3.30 s 5: 3.30, 9.440 s 6: 3.70, 9.440 s 8: 3.520, 3.1410 s 9: 3.520 s 9(2): 3.520 s 9(2)(a): 3.520 s 9(b): 3.550 s 10: 3.490

Table of Statutes Defamation Act — cont s 10(2): 3.480 s 10(3): 3.40 s 13(2): 3.580 s 14: 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580, 3.600, 3.620 s 19: 3.630 s 21: 3.30 s 21(1): 3.640 s 21(2): 3.1090 s 22: 3.650 ss 22 to 30: 3.640 s 23: 3.710 s 24: 3.720, 4.40 s 24(2)(a): 3.730, 4.70 s 24(2)(b): 3.740 s 25: 3.790, 4.70 s 25(4): 3.790 s 26: 3.820, 3.830, 4.40 s 26(3): 3.850 s 27: 3.1050 s 27(4): 3.1090 s 28: 3.1180 s 28(2): 3.1180 s 28(3): 3.1180 s 28(4): 3.1220 s 29: 3.1250 s 30: 3.1280 s 31: 3.1330 s 32: 3.1330 s 32(2): 3.1340 s 33: 3.1330 s 34: 3.1350 s 35: 3.1360 s 37: 3.1380 s 39: 3.670 Domestic and Family Violence Act 2007 s 26: 5.570 s 106: 5.570 s 123: 5.570 s 124: 5.570 Electoral Act: 4.580, 4.620 ss 268 to 270: 4.610 s 270(3): 4.620 s 270(3)(b): 4.620 s 272: 4.610 s 273: 4.610 s 274: 4.610 Evidence Act s 4: 5.570 s 5: 5.450 s 21A: 5.570 s 21F: 5.570

s s s s

57: 5.450, 5.570 57(2): 5.450 58: 5.450 59: 5.450

Information Act: 7.20, 8.60 s 15 to 16: 7.20 s 32: 7.30 s 45: 7.40 s 60: 7.40 Inquiries Act s 5: 3.740 s 15: 3.740 Juries Act s 6A: 3.300 s 49A: 5.830 s 49A(2): 5.830 s 49A(3): 5.830 s 49A(4): 5.830 ss 49A(5)(a) to (c): 5.830 s 49A(5)(d): 5.830 s 49A(5)(e): 5.830 ss 49A(6)(a) to (c): 5.830 s 49A(6)(d): 5.830 s 49A(6)(e): 5.830 s 49A(7)(a): 5.830 s 49A(7)(b): 5.830 s 49A(9): 5.830 s 49A(10): 5.830 s 49B: 5.840 s 49B(1): 5.840 ss 49B(1) to (3): 5.840 s 49B(2): 5.840 Justices Act: 5.450 s 61: 5.450 s 107: 5.450 Legislative Assembly (Powers and Privileges) Act: 4.310 s 4: 3.730, 4.310 s 5: 4.200 s 6: 3.730, 4.90, 4.160 s 6(2): 4.70 s 11: 4.70 s 13: 4.40 s 16(2): 4.310 s 18: 4.350 s 20: 4.490 s 21: 4.350 s 22: 4.480 s 23(1): 4.570 s 23(2): 4.40 s 25: 4.310 s 26: 4.210 lxxiii

Australian Media Law Magistrates Act s 18: 5.450 Printers and Newspapers Act: 14.1470 s 3: 14.1480 s 4(1): 14.1480 s 6: 14.1490 s 9: 14.1480 Sexual Offences (Evidence and Procedure) Act ss 6 to13: 5.570 Supreme Court Act: 5.450 s 12: 6.40 s 73: 5.450 Supreme Court Rules: 5.450 r 28.05: 5.675 r 32.03: 7.590 r 81A.09: 5.675 r 81A.39: 5.675 Surveillance Devices Act: 8.80, 8.110, 8.150, 8.370 s 4: 8.370 ss 11 to 12: 8.370 s 15: 8.390 s 15(2): 8.400 Terrorism (Emergency Powers) Act: 10.170 s 21U: 5.570 s 27W: 5.570 Witness Protection (Northern Territory) Act s 38: 5.570 Youth Justice Act s 49: 5.570 s 50: 5.570

QUEENSLAND Acts Interpretation Act 1954 s 14D: 8.1170 Adoption Act 2009 s 223: 5.570 s 304: 5.570 s 307G: 5.570 s 307O: 5.570, 5.675 s 307P: 5.570, 5.675 s 307Q: 5.570 s 315: 5.570 Anti-Discrimination Act 1991 s 4: 9.190 s 4A: 9.40 s 124A: 9.30, 9.290, 9.450, 9.520 s 131A: 9.30, 9.290, 9.450, 9.520 s 209: 9.360 lxxiv

Child Protection Act 1999 s 99J: 5.570 s 99K: 5.570 s 99ZG: 5.570 s 189: 5.570 s 190: 5.570 s 191: 5.570 s 192: 5.570 s 193: 5.570 s 194: 5.570 s 194A: 5.570 s 194B: 5.570 Child Protection (Offender Prohibition Order) Act 2008 s 20: 5.570 Children’s Court Act 1992 s 20: 5.570 Civil Liability Act 2003 s 9: 11.80 s 11: 11.90 Classification of Computer Games and Images Act 1995: 9.660 Classification of Films Act 1991: 9.660 s 37: 9.670 s 39: 9.670 s 40: 9.670 s 41: 9.670 s 42: 9.670 Classification of Publications Act 1991: 9.660 Commissions of Inquiry Act 1950 s 14B: 3.740 s 20: 3.740 Constitution of Queensland 2001 s 9: 4.260 s 58(2): 6.40 Coroners Act 2003 s 31: 5.570 s 38: 5.570 s 41: 5.570 s 42: 6.50 s 43: 5.570 s 64(1): 6.40 Criminal Code: 4.350, 9.440 s 52: 10.60 s 53: 4.350 s 56: 4.350 s 57: 4.350 s 58: 4.350 s 60: 4.400 s 377(8): 3.1160

Table of Statutes Criminal Code 1899 s 2: 8.1180 s 4: 8.1180 s 8: 6.10 s 44: 10.60 s 227A: 8.1170 s 227A(1): 8.80, 8.1170 s 227A(2): 8.1170 s 227B: 8.1170 s 228: 9.530 s 359E: 8.1170 s 365: 3.1470 s 365(1): 3.1480, 3.1510, 3.1530, 3.1540 s 365(3): 3.1520 s 365(7): 3.1550 s 365(8): 3.1490, 3.1500, 3.1520 Criminal Law (False Evidence Before Parliament) Amendment Act 2012: 4.350 Criminal Law (False Evidence Before Parliament) Amendment Bill 2012: 4.350 Criminal Law (Sexual Offences) Act 1978 Pt 3: 5.570 Criminal Practice Rules 1999 r 56: 5.675 r 56A: 5.675 r 57: 5.675 Defamation Act 1889 s 15: 8.980 s 16(1): 8.270 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 9(2)(a): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640

s s s s s s s s s

26: 3.710 27: 3.720, 4.40 27(2)(a): 3.730, 4.70 27(2)(b): 3.740 28: 3.790, 3.1210, 4.70 28(4): 3.790 29: 3.820, 3.830, 3.1210, 4.40 29(3): 3.850 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 21(1) 21(1): 3.300 21(3) 21(3): 3.300 District Court of Queensland Act 1967 s 126: 5.460 Domestic and Family Violence Protection Act 2012 ss 158 to 160: 5.570 Electoral Act 1992: 4.580 s 181: 4.610 s 184: 4.610 s 185(1): 4.620 s 185(2): 4.630 s 185(3): 4.620 Electoral (Truth in Advertising) Amendment Bill 2010: 4.620 Evidence Act 1977 s 21AU: 5.570 s 21AZC: 5.570 Fair Trading Act 1989 s 16: 3.1410, 8.890, 13.20 Information Privacy Act 2009: 8.60 lxxv

Australian Media Law Invasion of Privacy Act 1971: 8.80, 8.150 s 4: 8.170 s 42: 8.190 s 43: 8.280 s 43(2): 8.320 s 44(1): 8.330 s 44(2): 8.360 s 44(2)(b): 8.360 s 45(1): 8.260 s 45(2): 8.270 s 48A: 8.780 Jury Act 1995 s 47: 6.120 s 69A: 6.800 s 70: 5.830, 5.840 s 70(2): 5.830, 5.840 s 70(3): 5.830, 5.840 s 70(4): 5.830, 5.840 ss 70(6) to (8): 5.830 ss 70(9) to (10): 5.830 s 70(11): 5.840 Justices Act 1886 s 70: 5.460 s 71: 5.460 s 71B: 5.460 s 102F: 5.460 Justices Act 1986 s 4: 5.460 s 38: 5.460 Parliament of Queensland Act 2001: 4.210, 4.260 s 6: 4.260 s 8: 3.730, 4.350 s 9: 4.160 s 11: 4.200 ss 25 to 35: 4.350 s 37: 4.320, 4.350, 4.390, 4.400, 4.490 s 37(2): 4.200 s 38: 4.210 s 39(1): 4.260 s 39(2): 4.260 s 40(1): 4.200 s 40(2): 4.260 s 40(3): 4.260 ss 41 to 45: 4.260 s 47: 4.200 s 54: 4.70 s 56: 4.70 s 58(3): 4.320 Printing and Newspapers Act 1981: 14.1470 s 5: 14.1480 s 6(1)(a): 14.1480 s 6(1)(b): 14.1480 s 6(1)(d): 14.1480 lxxvi

s s s s s s

6(2): 6(3): 6(4): 7(1): 7(2): 7(3):

14.1480 14.1480 14.1480 14.1490 14.1490 14.1490

Public Interest Disclosure Act 2010 s 20: 7.500 s 20(1): 7.500 s 20(2): 7.500 s 26: 7.500 s 36: 3.770 Right to Information Act 2009: 7.20 s 18(1): 7.30 s 23: 7.20 Sch 3: 7.40 Supreme Court of Queensland Act 1991 s 8: 5.460 Terrorism (Preventative Detention) Act 2005: 10.170 s 76: 5.570 Uniform Civil Procedure Rules 1999 r 229: 7.590 r 980: 5.675 r 981: 5.675 Witness Protection Act 2000 s 27A: 5.570 Youth Justice Act 1992 s 234: 5.570 s 301: 5.570

SOUTH AUSTRALIA Adoption Act 1988 s 24: 5.570 s 24(2): 5.675 s 31: 5.570 s 32: 5.570 Children’s Protection Act 1993 s 59: 5.570 s 59A: 5.570 Civil Liability Act 1936 ss 31 to 32: 11.80 s 33: 11.70, 11.170 s 34: 11.90 s 54(2): 11.70 s 73: 9.30 s 73(1): 9.40, 9.290 s 73(3): 9.360 s 73(4): 9.360

Table of Statutes Classification (Publications, Films and Computer Games) Act 1995: 9.640 s 30: 9.670 s 38: 9.670 s 44: 9.670 s 45: 9.670 Constitution Act 1934 s 9: 4.270 s 38: 3.730, 4.270 Coroners Act 2003 s 19: 5.570 s 36: 6.50 Criminal Law Consolidation Act 1935 s 246: 5.830, 5.840 s 246(2): 5.830, 5.840 s 246(3): 5.830, 5.840 s 246(4): 5.830, 5.840 ss 246(5)(a) to (c): 5.830 s 246(5)(d): 5.830 s 246(5)(e): 5.830 ss 246(6)(a) to (c): 5.830 s 246(6)(d): 5.830 s 246(7)(a): 5.830 s 246(7)(b): 5.830 s 246(8)(a): 5.840 s 246(10): 5.830 s 246(8)(b): 5.840 s 246(11): 5.830 s 247: 5.830 s 257: 3.1470, 3.1550 s 257(1): 3.1480, 3.1500, 3.1510, 3.1530, 3.1540 s 257(2): 3.1520 s 257(4): 3.1550 Defamation Act 2005: 3.30, 4.630 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 22: 3.30 s 22(1): 3.640 s 22(2): 3.1090 s 23: 3.650 ss 23 to 31: 3.640

s s s s s s s s s s s s s s s s s s s s s s s s

24: 3.710 25: 3.650, 3.720, 4.40 25(2)(a): 3.730, 4.70 25(2)(b): 3.740 26: 3.790, 4.70 26(4): 3.790 27: 3.820, 3.830, 4.40 27(3): 3.850 28: 3.1050 28(4): 3.1090 29: 3.1180 29(2): 3.1180 29(3): 3.1180 29(4): 3.1220 30: 3.1250 31: 3.1280 32: 3.1330 33: 3.1330 33(2): 3.1340 34: 3.1330 35: 3.1350 36: 3.1360 38: 3.1380 40: 3.670

District Court Act 1991 s 54(1): 5.675 s 54(2): 5.675 s 54(3): 5.675 District Court (Civil) Rules 2006 r 9: 5.470 Electoral Act 1985: 4.580 s 107: 4.630 s 112: 4.610 s 112(1)(a): 4.610 s 112(1)(b): 4.610 s 112(1)(ab): 4.610 s 112(1)(ac): 4.610 s 113: 4.620 s 113(4): 4.620 s 113(5): 4.620 s 114: 4.610 s 116: 4.610 Electoral (Miscellaneous) Amendment Act 2013: 4.610 Evidence Act 1929 s 5: 5.570 s 68: 5.470 s 69(1): 5.470 s 69(1a): 5.470 s 69(1A): 5.570 s 69(2): 5.470 s 69(3): 5.470 s 69A(1): 5.470 lxxvii

Australian Media Law Evidence Act 1929 — cont s 69A(2): 5.470 s 69A(2)(a): 5.470 s 69A(2)(b): 5.470 s 69A(3): 5.470 s 69A(5): 5.470 s 69A(6): 5.470 s 69A(8): 5.470 ss 69A(8) to (11): 5.470 s 69A(10): 5.380 s 69A(12): 5.380, 5.470 s 69AB: 5.470 s 69AC: 5.470 s 71: 5.470 s 71A: 5.570 s 71B(1): 5.470 s 71B(3): 5.470 s 71C: 5.470 Pt 8: 5.470, 5.570 Evidence (Journalists) Amendment Bill 2014: 7.520 Evidence (Miscellaneous) Amendment Act 1999: 5.470

s 28: 4.270 s 31: 4.150 Racial Vilification Act 1996 s 3: 9.40, 9.190 s 4: 9.30 Royal Commissions Act 1917 s 16: 3.740 Summary Offences Act 1953 s 17: 8.780 s 17A: 8.780 ss 26A to 26E: 8.1170 s 35: 5.570 Supreme Court Act 1935 s 6: 6.40 s 131(1): 5.675 s 131(2): 5.675 s 131(3): 5.675 Supreme Court (Civil) Rules 2006 r 9: 5.470 r 32: 7.590

Evidence (Protections for Journalists) Amendment Bill 2014: 7.520

Terrorism (Preventative Detention) Act 2005: 10.170 s 47: 5.570

Fair Trading Act 1987 s 14: 3.1410, 8.890, 13.20

Tobacco Products Regulation Act 1997 s 40: 13.460

Freedom of Information Act 1991: 7.20 s 12: 7.20 s 19: 7.30 Sch 1, Pt 1: 7.40

Whistleblowers Protection Act 1993 s 5: 3.770, 7.500 s 5(3): 7.500

Intervention Orders (Prevention of Abuse) Act 2009 s 33: 5.570 Juries Act 1927 s 5: 3.300 Listening and Surveillance Devices Act 1972: 8.80, 8.150, 8.370 s 3: 8.170 s 4: 8.210, 8.280, 8.320 s 5: 8.260, 8.330 s 5(2): 8.360 s 6: 8.320 s 7(1): 8.250 s 7(3): 8.270 Magistrates s 51(1): s 51(2): s 51(3):

Court Act 1991 5.675 5.675 5.675

Parliamentary Committees Act 1991 lxxviii

Witness Protection Act 1996 s 25: 5.570 Wrongs Act 1936 s 37(1): 9.190 Young Offenders Act 1993 s 13: 5.570 s 63C: 5.570 Youth Court Act 1993 s 24: 5.570

TASMANIA Administration and Probate Act 1935 s 27: 3.490, 3.550 Admission to Courts Act 1916 s 2: 5.480 Admission to Courts (Lower Courts) Regulations 2006 reg 5: 5.480

Table of Statutes Adoption Act 1988 s 71: 5.570, 5.675 s 93: 5.570 s 99: 5.570 s 100: 5.570, 5.675 s 101: 5.570, 5.675 s 108: 5.570 s 109: 5.570 Anti-Discrimination Act 1998 s 19(a): 9.30 s 19(b): 9.520 s 19(c): 9.520 s 19(d): 9.450 s 55: 9.290 s 90: 9.360 Australian Consumer Law (Tasmania) Act 2010 s 6: 3.1410, 8.890, 13.20 Children, Young Persons and Their Families Act 1997 s 40: 5.570 s 103: 5.570 Civil Liability Act 2002 s 11: 11.80 s 13: 11.90 s 33: 11.70 s 34: 11.70, 11.170 Classification (Publications, Films and Computer Games) Enforcement Act 1995: 9.660 s 3: 9.690, 10.240 s 22: 9.670 s 36: 9.670 Commissions of Inquiry Act 1995 s 8: 3.740 Coroners Act 1995 s 56: 5.570 s 57: 5.570 s 66: 6.50 Criminal Code 1924: 10.60 s 66(1): 10.60 s 67(1)(b): 10.60 s 68: 10.60 s 72: 4.400 s 119: 9.440 ss 137 to 138: 9.530 s 196: 3.1470 s 196(1): 3.1480, 3.1500, 3.1510, 3.1530 s 196(3): 3.1520 s 196(6): 3.1550 s 196(7): 3.1490 s 389: 3.1540 Damage by Aircraft Act 1963: 8.720

Defamation Act 1957 s 15: 8.980 s 16(1): 8.270 s 18: 3.710 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 lxxix

Australian Media Law Defamation Act 2005 — cont Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 2004: 4.580 ss 190 to 194: 4.610 s 195: 4.610 s 197: 4.620 Evidence Act 2001 ss 126A to 126F: 7.650 s 194J: 5.480 s 194J(2): 5.480 s 194K: 5.570 s 194L: 5.570 Evidence Amendment Act 2010: 7.650 Family Violence Act 2004 s 31: 5.570 s 32: 5.570 Juries Act 2003 s 57: 5.840 s 58: 5.830 s 58(1)(a): 5.830 s 58(1)(b): 5.830 s 58(2): 5.830 s 58(3): 5.830 ss 58(6)(a) to (c): 5.830 s 58(6)(d): 5.830 s 58(6)(e): 5.830 s 58(8): 5.830 Justices Act 1959 s 37: 5.480 s 37(2): 5.480 s 37A: 5.480, 6.760 s 106K: 5.480 Listening Devices Act 1991: 8.80, 8.150 s 3(1): 8.170 s 5: 8.280 s 5(1): 8.210, 8.280 s 5(2): 8.320 s 5(3)(b): 8.250 s 9(1): 8.260, 8.330 s 9(2)(a): 8.360 s 9(2)(b): 8.360 s 9(2)(c): 8.360 s 10(2): 8.270 Magistrates Court (Children’s Division) Act 1998 s 11: 5.570 s 12: 5.570 Parliamentary Privilege Act 1858: 4.280 s 1: 4.280, 4.350 s 2: 4.280, 4.350 lxxx

s s s s s s s s s s s

2A: 4.280, 4.350 3: 4.280, 4.390 3(a): 4.350 3(b): 4.350 3(c): 4.390 3(f): 4.400 3(g): 4.350 7: 4.210 10: 4.210 11: 4.200, 4.280 12: 4.280

Parliamentary Privilege Act 1957 s 2: 4.280 s 3: 4.280 Personal Information Protection Act 2004: 8.60 Public Interest Disclosures Act 2002 s 7: 7.500 s 16: 3.770, 7.500 s 17: 7.500 Right to Information Act 2009: 7.20 s 7: 7.20 s 15: 7.30 s 26: 7.40 Supreme Court Rules 2000 r 33(4): 5.675 r 403C: 7.590 Terrorism (Preventative Detention) Act 2005 s 50: 5.570 Therapeutic Goods Act 2001: 13.490 Witness (Identity Protection) Act 2006 s 11: 5.570 Youth Justice Act 1997 s 22: 5.570 s 30: 5.570 s 31: 5.570 s 45: 5.570 s 108: 5.570

VICTORIA Adoption Act 1984 s 76: 5.570, 5.675 s 83: 5.570, 5.675 s 107: 5.570 s 120: 5.570 s 121: 5.570 Charter of Human Rights and Responsibilities Act 2006: 2.90, 5.20 s 15: 6.940 s 24(1): 4.180

Table of Statutes Children and Young Persons Act 1989: 5.570 s 26: 5.570 Children, Youth and Families Act 2005: 5.570 s 131: 5.570 s 330: 5.570 s 523: 5.490, 5.570 s 528(1): 5.490 s 534: 5.570 Civil Procedure Act 2010 s 27: 5.730 Civil and Administrative Tribunal Act 1998 s 121: 9.360 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995: 9.640 s 8: 9.670 s 15: 9.670 s 22: 9.670 s 23: 9.670 s 23A: 9.670 Commercial Arbitration Act 1984: 5.770 Constitution Act 1975 s 19(1): 3.730, 4.270 s 19(2): 4.270 s 19A(7): 4.40 s 19A(9): 4.200 s 73: 4.70 s 74(1): 4.70 s 74(3): 4.70 s 74AA: 4.40 s 76: 6.40 Coroners Act 2008 s 73(2): 5.530 s 103: 6.50 s 104: 6.50 Pt 2: 5.550 Corrections Act 1986: 7.290 County Court Act 1958: 5.550 s 80: 5.570 s 80AA: 5.570 County Court Civil Procedure Rules 2008 O 28.05: 5.675 Criminal Procedure Act 2009 s 133: 5.570 Pt 4.4: 5.660 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520

s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 2002: 4.580, 4.620 s 83: 4.610 s 84: 4.620 s 84(2): 4.620 s 85: 4.610 lxxxi

Australian Media Law Electoral Act 2002 — cont s 86: 4.610 Evidence Act 1958 s 21A: 3.740

Mental Health Act 1986: 7.290 Ombudsman Act 1973: 7.690

Juries Act 2000 s 77: 5.500, 5.840 s 78: 5.500, 5.830 s 78(1): 5.830 s 78(2): 5.830 ss 78(3) to (4): 5.830 s 78(7): 5.830 s 78(9): 5.830 s 78(11): 5.830 s 78(12): 5.830 s 78A: 6.800

Open Courts Act 2013: 5.200, 5.390, 5.490 s 3: 5.520, 5.530 s 4: 5.510, 5.540, 5.550 s 5: 5.500 s 5(1): 5.500 s 6: 5.500 s 7: 5.500 s 8: 5.500 s 10: 5.520 s 11: 5.520 s 12(1): 5.520 s 12(2): 5.520 s 12(3): 5.520 s 12(4): 5.520 s 13(1): 5.520 s 13(2): 5.520 s 14: 5.520 s 15: 5.520 s 16: 5.520, 5.530 s 17: 5.490, 5.530 s 18: 5.530 s 18(1)(c): 5.530 s 18(2): 5.570 s 19(1): 5.530 s 19(2): 5.530 s 19(3): 5.530 s 19(4): 5.530 s 20: 5.530 s 21: 5.530 s 22: 5.530 s 23: 5.530 s 24: 5.540 s 25: 5.510, 5.540 s 25(2): 5.540 s 26: 5.490, 5.510, 5.540 s 26(5): 5.540 s 27: 5.540 s 28: 5.500, 5.550 s 29: 5.500, 5.550 s 30: 5.490, 5.550 s 30(3): 5.570 s 31: 5.550 Pt 2: 5.500 Pt 3: 5.510 Pt 4: 5.510 Pt 5: 5.550

Magistrates’ Court Act 1989 s 125: 5.550, 5.670 s 126: 5.380, 5.570

Open Courts Bill 2013: 5.520 cl 11: 5.520 cl 12: 5.520

Major Crime (Investigative Powers) Act 2004: 7.690

Parliamentary Committees Act 2003 s 28: 4.350

Evidence Act 2008 s 4: 7.680 s 126J: 7.660 s 126J(1): 7.670, 7.700 s 126K: 7.660 s 126K(1): 7.670 s 126K(2): 7.670 s 131A: 7.660, 7.680 Evidence Amendment (Journalist Privilege) Bill s 3: 7.700 Fair Trading Act 1999 s 9: 3.1410, 8.890, 13.20 Family Violence Protection Act 2008 s 68: 5.570 ss 166 to 169: 5.570 Freedom of Information Act 1982: 7.20 s 13: 7.20 s 21: 7.30 s 28: 7.40 Independent Broad-based Anti-corruption Commission Act 2011: 7.690 Inquiries Act 2014 s 24: 5.570, 6.80 s 26: 5.570 s 71: 5.570 s 73: 5.570 Judicial Proceedings Reports Act 1958: 5.380, 5.500 s 4: 5.570

lxxxii

Table of Statutes Police Integrity Act 2008: 7.690 Privacy Data and Protection Act 2014: 8.60

Victorian Civil and Administrative Tribunal Act 1998 : 5.530

Protected Disclosure Act 2012 s 13: 7.500 s 39: 7.500 s 40: 7.500 s 41: 3.770

Victorian Inspectorate Act 2011: 7.690

Racial and Religious Tolerance Act 2001: 2.60 s 7: 9.30, 9.40 s 8: 9.450 s 11: 9.290, 9.490 ss 15 to 16: 9.280 s 17: 9.280 s 19: 9.280 s 24: 9.30 s 25: 9.450

Wrongs Act 1958: 8.720, 14.1470 s 4: 3.1520 s 10: 3.1470, 3.1500, 3.1540 s 10(1): 3.1480 s 11(2): 3.1530 s 13B(1): 14.1480 s 13C(1): 14.1480 s 13C(2): 14.1480 s 13C(4): 14.1480 s 48: 11.80 s 51: 11.90 s 72: 11.70, 11.170

Serious Sex Offenders Monitoring Act 2005 s 42: 5.40 Summary Offences Act 1966 s 9(1): 8.780 s 17: 9.530 ss 40 to 41G: 8.1170 Supreme Court Act 1986: 5.550 s 17: 5.330 s 17A(3): 5.330 s 18: 5.540, 5.570 s 19: 5.540, 5.570

Whistleblowers Protection Act 2001: 7.690 Witness Protection Act 1991: 5.500 s 13: 5.570

WESTERN AUSTRALIA Adoption Act 1994 s 84: 5.570, 5.675 s 123: 5.570 s 124: 5.570 s 133: 5.570

Supreme Court (General Civil Procedure) Rules 2005 O 75: 6.100

Censorship Act 1996: 9.660 s 68: 9.670 s 69: 9.670 s 80: 9.670 s 81: 9.670

Supreme Court of Victoria (Criminal Procedure) Rules 2008 O 1.11(4): 5.675

Children and Community Services Act 2004 s 237: 5.570 s 240: 5.570

Supreme Court of Victoria (General Civil Procedure) Rules 2005 r 32.03: 7.590 O 28.05: 5.675

Children’s Court of Western Australia Act 1988 s 31: 5.570 s 35: 5.570 s 36: 5.570 s 36A: 5.570 s 51A: 5.570

Surveillance Devices Act 1999: 8.80, 8.150, 8.370 s 3: 8.370 ss 6 to 7: 8.370 s 11(1): 8.390 s 11(2): 8.400 Terrorism (Community Protection) Act 2003: 10.170 s 12: 5.570 Tobacco Act 1987 s 6: 13.460

Civil Liability Act 2002 s 5B: 11.80 s 5C: 11.90 s 5Q: 11.70 s 5S: 11.70, 11.170 Constitution Act 1889: 4.290 s 36: 4.290 Constitution (Parliamentary Privileges) Amendment Act 2004: 4.290 lxxxiii

Australian Media Law Constitution (Parliamentary Privileges) Amendment Bill 2004 cl 7: 4.290 Coroners Act 1996 s 5(4): 6.40 s 45: 5.570 s 46A: 6.50 s 49: 5.570 s 51: 6.50 s 54: 6.50 Courts and Tribunals (Electronic Processes Facilitation) Act 2013: 5.710 Criminal Code: 9.30 s 56: 4.350 ss 56 to 61: 4.200 s 57: 4.40, 4.350 s 58: 4.490 s 59: 4.350 s 204: 9.530 Criminal Code 1913 s 44: 10.60 s 52: 10.60 s 76: 9.190 ss 77 to 80: 9.30 s 345: 3.1470 s 345(1): 3.1480, 3.1500, 3.1510, 3.1540 s 345(3): 3.1520 s 345(6): 3.1550 s 345(7): 3.1490 Criminal Procedure Act 2004 s 171: 5.560 Criminal Procedure Rules 2005 r 51: 5.675 Damage by Aircraft Act 1964: 8.720 Defamation Act 2005: 3.30 s 6: 3.30 s 7: 3.70 s 9: 3.520, 3.1410, 3.1460 s 9(2): 3.520 s 10: 3.490 s 10(b): 3.550 s 11(2): 3.480 s 11(3): 3.40, 3.1280 s 14(2): 3.580 s 15: 3.580 s 16: 3.580 s 17: 3.580 s 18: 3.580, 3.600, 3.620 s 20: 3.630 s 21(1): 3.300 s 21(3): 3.300 s 22(2): 3.300, 3.320 lxxxiv

s 22(3): 3.300, 3.1330 s 22(5)(b): 3.300 s 24: 3.30 s 24(1): 3.640 s 24(2): 3.1090 s 25: 3.650, 3.710 ss 25 to 33: 3.640 s 26: 3.710 s 27: 3.720, 4.40 s 27(2)(a): 3.730, 4.70 s 27(2)(b): 3.740 s 28: 3.790, 3.1210, 4.70 s 28(4): 3.790 s 29: 3.820, 3.830, 3.1210, 4.40 s 29(3): 3.850 s 30: 3.1010, 3.1050, 3.1060, 3.1080, 3.1100, 8.980 s 30(3): 3.1080, 8.1050, 9.300 s 30(4): 3.1090 s 31: 3.1190, 3.1200, 3.1230 s 31(1): 3.1180 s 31(2): 3.1180 s 31(3): 3.1180 s 31(4): 3.1220 s 31(6): 3.1210 s 32: 3.1250 s 33: 3.1280 s 34: 3.1330 s 35: 3.1330 s 35(2): 3.1340 s 36: 3.1330 s 37: 3.1350 s 38: 3.1360 s 40: 3.1380 s 42: 3.670 Sch 1: 3.720 Sch 2: 3.790 Sch 3: 3.820 Electoral Act 1907: 4.580 s 187(1): 4.610 s 187(2): 4.610 s 187B: 4.610 s 191A(1): 4.620 s 191A(2): 4.620 Evidence Act 1906: 7.680 s 4: 7.680 s 20A: 7.650 ss 20A to 20F: 7.650 s 20G: 7.670, 7.700 ss 20G to 20M.: 7.660 s 20I: 7.670 s 20J(2): 7.670 s 20J(3): 7.670 s 20K(1): 7.670 s 20K(2): 7.670

Table of Statutes Evidence Act 1906 — cont s 20K(3): 7.670 s 20L: 7.670 s 36A: 5.570 s 36C: 5.570 Evidence and Public Interest Disclosure Amendment Legislation Bill 2011 s 9: 7.650 Evidence and Public Interest Disclosure Legislation Amendment Act 2012: 7.650

s s s s s s s s s s s

5: 4.290 7: 4.290, 4.360 8: 4.290 8(a): 4.350 8(b): 4.350 8(c): 4.390 8(f): 4.400 8(g): 4.350 11: 4.210 14: 4.390 15: 4.200

Fair Trading Act 1987 s 19: 8.890

Police Act 1892: 9.800 s 66(13): 8.780, 8.790

Fair Trading Act 2010 s 19: 3.1410, 13.20

Public Interest Disclosure Act 2003 s 5: 7.500 s 13: 3.770, 7.500

Freedom of Information Act 1992: 7.20 s 10(1): 7.20 s 13: 7.30 ss 36 to 38: 7.40 Sch 1: 7.40 Information Privacy Bill 2007: 8.60 Juries Act 1957 s 56A: 5.830 ss 56A to 56E: 5.830, 5.840 s 56B(1): 5.830, 5.840 ss 56B(2)(a) to (e): 5.830 s 56B(2)(f): 5.830 s 56B(2)(g): 5.830 s 56B(2)(h): 5.830 s 56C: 5.830, 5.840 ss 56C(2)(a) to (e): 5.830 s 56C(2)(f): 5.830 s 56C(2)(g): 5.830 s 56D: 5.830, 5.840 s 56D(2)(a): 5.830 s 56D(2)(b): 5.830 s 56E(a): 5.840 s 56E(b): 5.840 s 57: 5.840 Magistrates Court (Civil Proceedings) Act 2004: 5.560 s 45(1): 5.560 s 45(3): 5.560 Parliamentary Papers Act 1891: 4.290 s 1: 4.70 s 2: 4.70 s 3: 4.70 Parliamentary Privileges Act 1891: 4.290 s 1: 3.730, 4.290 s 4: 4.290 ss 4 to 7: 4.350

Restraining Orders Act 1997 s 70: 5.570 Royal Commissions Act 1968 s 20: 3.740 s 31: 3.740 Rules of the Supreme Court of Western Australia 1971 O 26A, r 3: 7.590 O67, r O67, 11: 5.675 Supreme Court Act 1935 s 6(2): 6.40 Surveillance Devices Act 1998: 8.80, 8.150, 8.370, 8.420 s 3: 8.370 s 5(2)(d): 8.380 s 5(3): 8.380 ss 5 to 6: 8.370 s 6(2)(d): 8.380 s 6(3): 8.380 s 9(1): 8.390 s 9(2): 8.400 s 24: 8.410 s 25: 8.370 s 26: 8.410 s 27: 8.410 s 28: 8.410 s 29: 8.410 s 30: 8.410 s 31: 8.410 Terrorism (Preventative Detention) Act 2006: 10.170 s 53: 5.570 Tobacco Products Control Act 1990 s 5: 13.460 lxxxv

Australian Media Law Witness Protection (Western Australia) Act 1996 s 23: 5.570 s 32: 5.570

UNITED KINGDOM

Young Offenders Act 1994 s 40: 5.570

Bill of Rights 1689 Art 9: 3.730, 4.30, 4.50, 4.70, 4.80, 4.90, 4.100, 4.120, 4.140, 4.150, 4.170, 4.180, 4.500

CANADA Canadian Charter of Rights and Freedoms s 2(b): 6.940 Art 11: 4.180 Tobacco Products Control Act 1988: 13.480

FIJI ISLANDS Constitution of Fiji 1990 s 13: 6.940

MAURITIUS Constitution of Mauritius s 12: 6.940

NEW ZEALAND Bill of Rights: 8.600 Bill of Rights Act 1990: 6.940 s 14: 8.600 s 25: 4.180 Copyright Act 1994 ss 122A to 122U: 12.350 s 122B: 12.350 Evidence Act 2006: 7.660 s 68: 7.660 s 69: 7.660 Legislature Act 1908 s 242(1): 4.270 Parliamentary Privilege Act 2014: 4.120 s 3(2)(d): 4.120 s 10: 4.150, 4.160 s 11: 4.90 s 22: 4.270 Privacy Act 1993 s 2(1): 8.40

SOUTH AFRICA Constitution of the Republic of South Africa Act 1996 s 16(1): 6.940 s 36(1): 6.940 lxxxvi

Anti-Racial Discrimination Act: 9.200

Chancery Amendment Act 1858 (Lord Cairns’ Act): 7.430, 8.950, 8.960 Communications Act 2003 s 319(2)(g): 4.600 s 321(2): 4.600 s 321(3): 4.600 Constitutional Reform Act 2005 s 47: 5.630 Contempt of Court Act 1981: 6.10, 6.510 s 2(2): 6.220 s 8: 5.830 s 9: 5.590 s 10: 7.660 Crime and Courts Act 2013 s 32: 5.630 s 33: 6.810 Criminal Justice Act 1925 s 41: 5.630 Criminal Justice and Courts Bill 2014: 5.830 Data Protection Act 1998 s 32(1): 8.40 Defamation Act 1996: 4.140, 4.290 s 13: 3.730, 4.140 Defamation Act 2013: 3.30 s 2: 3.670 s 3: 3.1180 s 4: 3.1040 s 5: 3.560 s 8: 6.160 Deregulation Act 2015: 4.140 Digital Economy Act 2010: 12.350 Human Rights Act 1988: 8.530 s 6(1): 8.520 Human Rights Act 1998: 3.1040, 7.60, 7.660 Libel Act 1843: 3.1530 s 6: 3.1470 s 7: 3.1470 Official Secrets Act 1911: 7.90 Parliamentary Papers Act 1840: 4.60, 4.70

Table of Statutes Parliamentary Papers Act 1840 — cont s 3: 4.60

Berne Convention for the Protection of Literary and Artistic Works 1886: 12.50

UNITED STATES

European Convention for the Protection of Human Rights and Fundamental Freedoms: 4.180, 8.530, 8.960 Art 8: 8.10, 8.530, 8.960 Art 10: 1.10, 8.530, 8.960 Art 6: 4.180 Art 10: 7.660

Communications Decency Act 1996 s 230: 3.560 Constitution: 2.80, 2.90 First Amendment: 2.80, 2.90, 9.630, 10.40, 11.40, 11.80, 11.110, 11.280, 11.290, 11.310 Copyright Term Extension Act 1998: 12.150 Espionage Act 1918: 10.40 Restatement (Second) of Torts: 8.1000, 8.1030 s 30(3): 8.1050 s 652B: 8.470 s 652C: 8.500 s 652D: 8.480 s 652E: 8.490 Second Restatement: 8.600 Sedition Act 1798: 10.40 Subversive Activities Control Act 1950: 10.40 Telecommunications Act 1996: 15.160

TREATIES AND CONVENTIONS Australia-United States Free Trade Agreement Art 10.6.1(c): 14.1130

International Covenant on Civil and Political Rights 1966: 8.20, 9.30 Art 14: 4.240, 5.40 Art 14(1): 5.40 Art 14.3(e): 4.90 Art 17: 8.10 Art 19: 6.520 Art 19(2): 1.10 Art 19(3): 1.10 Art 20: 9.20 Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement Art 4: 14.1100 Art 5(1): 14.1100 Universal Declaration of Human Rights 1948 Art 12: 8.10 Art 19: 1.10

lxxxvii

Introduction

1

[1.10] The raison d’etre of an examination of the area conveniently referred to as “Media Law” may be found in two statements made by Mahoney JA in the New South Wales Court of Appeal. The first recognises that freedom of speech – and freedom of the press (or today, more accurately, the media) – is a central tenet of a free democracy. His Honour explained the importance of free speech in a democracy in the following terms: It is not necessary to stress the ends which are achieved by the capacity to speak freely: Ideas might be developed freely, culture may be refined, and the arrogance or abuse of power may be controlled. These ends are important ends in a free society. 1

A free press performs a communication role in a myriad of ways, whether as a source of “debate and comment, information and speculation, news and opinion, education and entertainment”. 2 As such, it is an important facilitator of free speech. With this role comes power. As Justice Leveson observed in the Final Report of his inquiry into the British press, prompted by the phone hacking practices of the News of the World newspaper: It is because of the position of the press as an institution of power that it is able to stand up to and speak truth to power. The professional skills and resources at its disposal enable the press as an institution to carry out ground-breaking investigations in the public interest. It is these considerations and functions which have resulted in the press as an institution being afforded certain privileges going beyond those protected by freedom of speech. 3

Mahoney JA’s second statement reflected upon the exercise of free speech by the media: The media exercises power, because and to the extent that, by what it publishes, it can cause or influence public power to be exercised in a particular way. And … it needs no authority to say what it wishes to say or to influence the exercise of public power by those who exercise it. The media may, by the exercise of this power, influence what is done by others for a purpose which is good or bad. It may do so to achieve a public good or its private interest. It is, in this sense, the last significant area of arbitrary public power. 4

Sir John Donaldson MR expressed a similar sentiment in the English Court of Appeal: The media, to use a term which comprises not only the newspapers but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propogating the views of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always. 5

1 2

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 720. Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 79.

3

Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 68. In Australia the “certain privileges” include shield laws in many jurisdictions that mean that journalists cannot be compelled to reveal their sources (see [7.650]-[7.700]), exemption from laws governing collection of personal information (see [8.40]), a media safe harbour defence to the prohibition of engaging in misleading or deceptive conduct (see [3.1420] and [13.410]) and various defences in defamation, including qualified privilege (see [3.870]-[3.1010]). Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 725. Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892 at 989.

4 5

[1.10] 1

Australian Media Law

Freedom of expression has been recognised at an International level. For example, Art 19(2) of the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia in 1980, states as follows: Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 6

However, freedom of expression and, by extension, freedom of the media, is a special case of the general proposition of the common law that “everybody is free to do anything, subject only to the provisions of the law”. 7 The ICCPR recognised that freedom of expression is not absolute in Art 19(3): The exercise of the rights provided for in paragraph (2) of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a)

For respect of the rights or reputations of others;

(b)

For the protection of national security or of public order (ordre public), or of public health or morals.

There is recognition at an international level that free speech is not absolute. At least two reasons for this may be advanced: in some circumstances it may conflict with other interests; and as an instance of arbitrary power, there should be some controls to ensure that the power of free speech is not misused. 8 As Martin CJ, himself a former editor of the original Australian newspaper and a former State Premier, said in Anderson v Fairfax 9 in 1883: … the freedom of the press is valuable, but there is a limit beyond which it is necessary, for the sake of the public interests, that this power of examination and comment should not be allowed to go. There are various kinds of tyrannies, but there is no tyranny which would be more disastrous or intolerable than the tyranny of an unbridled press over which there was no control.

“Media Law” is therefore a useful term to describe the checks and balances – not only by the law per se, but in recent times also by way of industry self regulation – placed upon the otherwise free speech exercised by the media. However, what exactly is meant by the term “the media” for these purposes? The answer to this question in the information age is different from that which may have been given in the past. A traditional interpretation might be, as Sir John Donaldson MR observed in 1984 in the passage just quoted, “not only the newspapers but also television and radio”, which might even then have been acknowledged as including other print media, such as books, pamphlets, and magazines, and electronic media, such as films and videos. Today the concept may embrace other means of conveying information and ideas including “new media” such as blogs, podcasts, online bulletin boards and discussion lists, computer software, video games and multimedia. This text was written with this enhanced concept of “the media” in mind. It will become obvious throughout this text 6 7 8 9

See also Art 19 of the Universal Declaration of Human Rights made on 10 December 1948; Art 10 of the European Convention on Human Rights. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564; Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 154 ALR 67 at 67. See also Hon Brian Leveson, An Inquiry into the Culture, Practices and Ethics of the Press (2012) at 76. Anderson v Fairfax, Evening News, 7 August 1883.

2 [1.10]

Chapter 1 – Introduction

that while some areas of the law have adapted to these new forms of media, in others the law is struggling to keep apace with changes in technology.

[1.10] 3

Free Speech

2

[2.10] INTRODUCTION .......................................................................................... 5 [2.20] FREE SPEECH AND THE RISE OF A FREE PRESS .......................................... 6 [2.30] PHILOSOPHICAL JUSTIFICATIONS FOR FREE SPEECH .............................. 7 [2.40] Speech and autonomy ................................................................................ 8 [2.50] Speech and truth ......................................................................................... 9 [2.60] Speech and democracy ............................................................................. 12 [2.70] CONSTITUTIONAL EXPRESSIONS ............................................................ 13 [2.80] Constitutional free speech in the United States: The FirstAmendment .... 13 [2.90] Constitutional free speech in Australia: The implied freedom of political communication .................................................................... 16 [2.100] The implied freedom and philosophical justifications for free speech .... 23 [2.110] LIMITS AND CHALLENGES TO FREE SPEECH ........................................ 25 [2.120] CONCLUSION ......................................................................................... 29

Introduction [2.10] The principles of free speech lie at the heart of media regulation in Western liberal democracies such as Australia. While media laws are predicated on a range of public interests – including the importance of privacy, the administration of justice, economic development and security, and moral or community standards – no public interest has the rhetorical, political or legal force of “freedom of speech”. In order to both understand and critically evaluate media regulation, a consideration of free speech is essential. What is “free speech”? Definition is a difficult task. The history of free speech is, in part, a struggle to control its meaning. For the purposes at hand, speech includes at least the physical act of speech – the expression of thought through the spoken word. Writing will constitute speech, as will, for instance, the making of gestures or wearing particular clothing. These forms of expression are “speech” because they have been classified as such in particular histories; the defining of free speech is an effect and a manifestation of particular relationships of political, social, cultural, economic and legal power over the past four centuries. If speech includes words, gestures, actions or signs that express our thoughts, then what is meant by “free speech”? The state is the primary regulator of activities between citizens and it is the state which will, in certain circumstances, prevent its citizens from engaging in certain types of speech. So, in short, free speech is generally understood as speech that is not subjected to regulation by the state. Importantly, it is also the state itself which enacts laws to protect certain kinds of speech and ensure speech is not restricted. This includes protecting speech that is critical of the state. This dichotomy between the citizen and the state is at the heart of free speech debates and it is within this opposition that the rationales for free speech begin to make sense. [2.10] 5

Australian Media Law

The objective of this chapter is to introduce and critically explore free speech principles. This chapter is divided into four sections. First, there is a brief outline of the development of free speech and the emergence of a free press in England through the 16th and 17th centuries. Secondly, the core philosophical justifications for free speech are addressed. Thirdly, there is a consideration of constitutional free speech in the United States and Australia. Fourthly, there is an investigation of some limits and challenges that may warrant critical attention in thinking about free speech. A brief conclusion aims to draw together the various themes and issues of this chapter, suggesting some possible ways to view the relationships between law and speech, and what these relationships might mean for legal regulation of the media.

Free speech and the rise of a free press [2.20] The regulation of the Australian media has its heritage, like most Australian law, in the laws of England. The development of a press freedom in that country is the starting point for an exploration of the law and politics of free speech in Australia today. 1 William Caxton set up the first English printing press at Westminster in 1476, but it was during the rule of Henry VIII (1509–1547) that publishing increased remarkably. That period marked the beginning of a new age of speech. The ability to disseminate information rapidly brought new threats to the authority of the King. It quickly became a crime to print without the Crown’s permission and a licensing system was enforced with varying degrees of will and effectiveness until the mid-1600s. The second half of the 17th century saw perhaps the most fundamental change in English history when rule shifted from the monarchy to the parliament. It was during this period that John Milton made his now famous appeal to Parliament, “A Speech for the Liberty of Unlicensed Printing”, published as the Areopagitica. 2 Milton’s argument had little effect at the time, but was frequently drawn upon many years later in defence of free speech and a free press. 3 The decline of the monarchy saw the abandonment of the law of treason as a control on the press, but the law of seditious libel remained effective. 4 Seditious libel was committed by publishing criticism of the government; the rationale behind this criminal offence was that people should hold a good opinion of the government. It was no defence that the libel was true, as “a true libel is especially dangerous, for unlike a false libel, the dangers of truthful 1

This short history of the press in England draws significantly on the authoritative account by F S Siebert, Freedom of the Press in England 1476–1776 (1965). See also L Levy, Emergence of a Free Press (1985).

2

J Milton, “Areopagitica – A Speech for the Liberty of Unlicensed Printing” (first published 1644), in H B Cotterill (ed), Milton’s Areopagitica – A Speech for the Liberty of Unlicensed Printing (1904), p 45.

3

Siebert (1965), p 196. The best known citation of the Areopagitica is in John Stuart Mill’s “On Liberty”: J S Mill, “On Liberty” in M Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962). B Edgeworth, “Defamation law and the emergence of a critical press in colonial New South Wales” (1990) 6 Australian Journal of Law and Society 50 at 55-59.

4

6 [2.20]

Chapter 2 – Free Speech

criticism cannot be defused by disproof. … ‘The greater the truth the greater the libel’”. 5 Siebert argues that the regular searching, harassment and imprisonment of printers was so great that “no single method of restricting the press was as effective as the law of seditious libel as it was developed and applied by the common law courts in the later part of the 17th century”. 6 The rise of parliamentary democracy saw freedom of speech take hold in the parliament. However, this was not immediately accompanied by an increase in press freedom. Until the late 18th century, parliamentarians: Accepted the theory that they were representing the people but at the same time refused to acknowledge that they were responsible to the people. Not being responsible to the public, there was no reason to inform it of matters under discussion or of reasonings on these matters. 7

There was a gradual easing of restrictions on the reporting in the press of parliamentary proceedings. By 1771, after a show of popular support for publishers who were charged with reporting parliamentary proceedings, the parliament capitulated and proceedings were reported daily and without fear of punishment. 8 The change pointed towards a shift in the nature of parliament: Not only was the ancient system shattered, but a new democratic movement was tacitly recognised in which the public as well as the members had an interest … The bright light of publicity, the open and often irrational criticism of newspaper editors, the immediate and recurrent pressure of public groups – all served to accelerate the change from an independent to a responsible representative assembly. The freedom of the press to report to the public the actions and opinions of its representatives was a significant step toward a wider and more direct democracy. 9

It was around this time that modern free speech principles began to take shape at a remarkable historical intersection of philosophical upheaval, political revolution and legal protection for speech. Philosophical upheaval is an especially enduring and important dimension of free speech. It provides a framework against which the law and politics of free speech might be understood.

Philosophical justifications for free speech [2.30] The 18th century saw a distinct shift in philosophical thought within which lies the beginning of contemporary free speech theory. This period of change is known as the Enlightenment. The Enlightenment was characterised by a rejection of knowledge derived through tradition and authority, including religious authority. Instead, the fundamental source of knowledge about the physical and human world became reason – that is, the capacity of 5

Rex v Tutchin (1704) 14 Howell’s State Trials 1095 at 1128, cited in G Stone, L Seidman, C Sunstein and M Tushnet (eds), Constitutional Law (1991), p 1012.

6 7

Siebert (1965), p 269 and generally at pp 269-275, 380-392; Levy (1985), pp 7-15. Siebert (1965), p 285.

8

Nonetheless, successful libel actions continued for some years. Only after the decision in Stockdale v Hansard (1839) III State Trials 723 did the Parliament legislate to ensure unfettered publication. Siebert (1965), p 363.

9

[2.30] 7

Australian Media Law

human beings to know truth through independent and critical thought. The pursuit of human freedom – of liberty – was directed toward the individual because reason resides with the individual. This philosophical revolution was seen at the time as “the achievement by the self of its proper autonomy,” liberating individuals from “outmoded forms of social organisation”. 10 Douzinas and Warrington summarised the impact of the Enlightenment for the progressive thinkers of the time: The shackles that held back political organisation, thought, individual liberty, and production were overthrown. Modern thought becomes possible because the terror of superstition has been replaced. 11

With reason as the foundation for liberty, free speech is necessary in order that all forms of authority be subjected to challenge. John Stuart Mill’s On Liberty, published in 1859, is perhaps the key text which advocates the necessity of free speech and a free press in light of both the political structure of the day and Enlightenment thought. 12 The philosophical insights of the Enlightenment and its concern with individual liberty remain, to this day, the background against which contemporary free speech debates occur. Philosophical justifications for free speech all relate to a fulfilment of the human condition through liberty, but are directed towards it (or draw upon it) in different ways. First, there is the proposition that speech is a good thing because acts of speaking and listening enhance our humanity and maintain our human dignity. Secondly, speech is said to enable the discovery of “truth” and this is innately beneficial to humans as it enables us to live a moral or good life. Thirdly, it can be argued that free speech enhances the possibilities and quality of democracy, and democracy is good for our humanity. These will be explored in turn. 13 The extent to which speech should be (or perhaps is) protected may depend on what kind of speech it is. For the purposes of this chapter, speech can be considered as speech with factual content (information), speech with normative or moral/ethical content (including political discussion and opinions), or speech with expressive content (especially artistic works or acts of self-expression). While the distinctions are necessarily somewhat artificial and overlap, the delineation might make it easier to understand the philosophical rationales and their applications.

Speech and autonomy [2.40] It is said that one reason speech should be protected is because it enhances an individual’s autonomy. This position can take different forms. The primary argument is that speech is a uniquely human activity. It is the expression of thought and in speaking we fulfil and live out our humanity. Here, speech would usually be 10 11 12 13

A MacIntyre, After Virtue – A Study in Moral Theory (1981), p 58. C Douzinas and R Warrington with S McVeigh, Postmodern Jurisprudence – The Law of Text in the Texts of Law (1991), p 7. Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), pp 126-250. On the philosophy of free speech, see E Barendt, Freedom of Speech (2nd ed, 2005); T Campbell, “Rationales for freedom of communication” in W Sadurski and T Campbell (eds), Freedom of Communication (1994), pp 17-44; K Greenawalt, “Free speech justifications” (1989) 89 Columbia Law Review 119; W Sadurski, Freedom of Speech and its Limits (1999); F Schauer, Free Speech: A Philosophical Inquiry (1982).

8 [2.40]

Chapter 2 – Free Speech

understood as something that is directly and intrinsically valuable of itself, rather than being something that is instrumentally valuable (in the sense that it helps us achieve a goal). This traditional formulation is at its strongest in protecting aesthetic and self-expressive speech. An extension of the autonomy argument might justify protecting factual and political speech. On the primary view, there is a right to speak because it is important to the speaker; on this formulation, there is a right to speak because others need to hear what you have to say. 14 Scanlon argues that because autonomous human beings have a right to make up their own minds they also have a right to all the information that is necessary for them to do that. 15 Regulation that removes our awareness of alternatives will thus reduce our autonomy. The democratic implications of this rationale are that individuals have “a right to the information necessary to make informed choices and can claim this right against the government because of the democratic relationship between the state and its citizens”. 16 Adrienne Stone has argued that the autonomy justification could have a significant role to play in determining the nature and operation of constitutional free speech in Australia. 17 There are some difficult issues for the autonomy arguments when studying why people speak. Should speech be protected when a speaker claims that their speech is intrinsically valuable while a critic claims the speech in question is really an instrumental tool that has some other aim? For example, advertising, pornography or political protest marches may be better interpreted as forms of expression aimed at achieving goals rather than speech that fulfils a speaker’s humanity. If so, then decisions about protecting the speech in question would be dependent on the value of any particular goal trying to be achieved. 18 The two goals that are usually said to require free speech are the discovery of truth and the pursuit of democracy.

Speech and truth [2.50] A second defence of free speech lies in the value of speech for the discovery of truth. “Truth” is not restricted to information; it includes political or ethical truths – the moral principles which should guide the way we live. The argument is that speech should be protected because truth can only be discovered where there is a circulation of all ideas, regardless of their perceived value at any given time. If the circulation of ideas is restricted, truth may be displaced by falsehood. The genesis and perhaps the best known expression of this rationale is in Milton’s oft-quoted Areopagitica: 14 15 16 17 18

See Schauer (1982), p 69 and Campbell in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 35-36. T Scanlon, “A theory of freedom of expression” (1972) 1 Philosophy and Public Affairs 204 at 221-222. Scanlon (1972) at 222. A Stone, “Rights, personal rights and freedoms: The nature of the freedom of political communication” (2001) 25 MULR 374. Notions of autonomy and self-expression may be relevant to the law’s response to, for example, obscene publications and pornography: see Chapter 9, Offensive Publications.

[2.50] 9

Australian Media Law And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? 19

For Milton, a free press was vital in circulating ideas and truth would always prevail regardless of what other ideas might be circulated. 20 The rationale relies on the human faculty of reason; in short, we will recognise truth when we see it. 21 For Milton, reason has a pre-Enlightenment hue: it enables us to distinguish between good and evil, or right and wrong, and to interpret God’s plan and the divine path to the good life. 22 The truth justification finds its Enlightenment manifestation in On Liberty where Mill explored “the nature and limits of the power which can be legitimately exercised by society over the individual”. 23 Mill was concerned that humans are fallible; opinions should not be silenced by the government because such opinions may turn out to be true. 24 Even false opinion should not be hidden by those who believe they have identified the correct position: Every opinion which embodies somewhat of the portion of truth which the common opinion omits, ought to be considered precious, with whatever amount of error and confusion that truth may be blended. 25

Opinions which are true must be held on a rational basis or “rejected wisely and considerately;” it is not enough that truth exists “as a prejudice, a belief independent of … argument”. 26 Regardless of how true an opinion might be, it can only remain as a “living truth” if it is continually challenged; “if it is not fully, frequently and fearlessly discussed, it will be held as dead dogma”. 27 The echoes of Milton remain: The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give truth a chance of reaching us … This is the amount of certainty attainable by a fallible being, and this is the sole way of admitting it 28

A question of particular importance arises in this justification for free speech: is it possible to discover truth? There are two responses, one old and one new. The traditional rationale does 19

21 22

Milton in Cotterill (ed), Milton’s Areopagitica – A Speech for the Liberty of Unlicensed Printing (1904), p 45. The plea did not by any means suggest completely unrestricted printing – Milton’s concern was primarily for the freedom of (Protestant) intellectuals: Levy (1985), pp 93-94. While Milton never argued for a completely free press (recommending “fire and the executioner” as the solution for books which had a bad effect) there is something of an irony in his own efforts to spread truth as he became the chief censor for Oliver Cromwell in the period when press restrictions were at their tightest; J Hohenberg, Free Press, Free People (1973), pp 23-25. J Keane, The Media and Democracy (1991), pp 11-13, esp p 12 on reason. J Keane (1991), pp 11-13.

23 24 25 26

Mill Mill Mill Mill

27 28

Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), p 161. Mill in Warnock (ed), John Stuart Mill: Utilitarianism, On Liberty, Essay on Bentham (1962), p 147.

20

10 [2.50]

in in in in

Warnock Warnock Warnock Warnock

(ed), (ed), (ed), (ed),

John John John John

Stuart Stuart Stuart Stuart

Mill: Mill: Mill: Mill:

Utilitarianism, Utilitarianism, Utilitarianism, Utilitarianism,

On On On On

Liberty, Liberty, Liberty, Liberty,

Essay Essay Essay Essay

on on on on

Bentham Bentham Bentham Bentham

(1962), (1962), (1962), (1962),

p p p p

126. 143. 174. 162.

Chapter 2 – Free Speech

not rely on the attainment or existence of truth itself, but on degrees of certainty. In its simplest form, the argument is that even if truth cannot be certainly established, more knowledge will still be better than less knowledge; “some epistemic states are preferable to other epistemic states”. 29 The issue is whether some “epistemic advance” can be made. 30 The argument is that if more knowledge abounds in the community then more ideas about the way we should live will be circulated in the political community. With more ideas available, we are in a better position to make a decision about what will constitute the good life. The more recent argument is the anti-foundationalist position (often expressed as postmodernism): it is simply not possible to discover truth because all claims to knowledge are claims to power. 31 That is, any claim to a moral principle which can apply to other people is a claim to exercising power because the proposed ethical norm is from a particular position (that of the self) and necessarily cannot take account of the experiences of the object of that principle (the other), yet this norm would be imposed upon all universally. At its strongest, this position may imply that everything is relative and there is no such thing as truth; all claims to truth are matters of perspective and no one can make authoritative judgments about right and wrong. The anti-foundationalist response to those arguments is generally framed in terms such as inclusion and exclusion. It is not that one cannot make moral claims, but one should be cautious because your own claims may operate to exclude the claims of others. The better position, according to this response, is to search for principles that include others in the moral community, and this may rely upon or result in the co-existence of moral principles that are different but equally valid in their ethical status. The extent of protection may depend on the type of speech. In matters of science where the objective truth may be provable, at least to the extent that it corresponds in a compelling manner to a physical test, there may be an argument to offer greater protection to speech. The claims to truth in other categories of knowledge may warrant closer examination when exploring the extent of protection that should be afforded them. 32 Schauer claims that in matters of ethics, of what is good and (morally) right, the argument for truth is not faultless but it is still useful: It … focus[es] our attention on fallibility, on the possibility that “we” may be wrong and “they” may be right. To the extent that the suppression of opinion may be inconsistent with this understanding of our fallibility, the argument from truth at least gives us pause before we so quickly assume the truth of received opinion. 33 29 30

Schauer (1982), pp 17-18. Schauer (1982), p 25.

31

For those unfamiliar with this school of thought, the following may be helpful starting points. A very short and very readable statement of the central tenets can be found in M Foucault, “The political function of the intellectual” (1977) 17 Radical Philosophy 10. For an introduction to law and postmodern thought, see R Hunter, R Ingleby and R Johnstone (eds), Thinking About Law (1995), pp 123-131, P Murphy, “Postmodern perspectives on justice” (1991) 30 Thesis Eleven 117, or A Todd, “Neither Dead nor Dangerous: Postmodernism and the Teaching of Legal Writing” (2006) 58 Baylor Law Review 893. For an anti-foundationalist reading of free speech, see S Fish, There’s No Such Thing As Free Speech (And It’s A Good Thing Too) (1994).

32 33

Schauer (1982), pp 30-33. Schauer (1982), p 34.

[2.50] 11

Australian Media Law

The search for truth in an environment of unfettered discourse finds expression in American jurisprudence as the “marketplace of ideas”. The dissenting judgment of Holmes J in Abrams v United States, handed down 60 years after Mill published On Liberty, is perhaps the most famous judicial articulation of the rationale: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” 34

Speech and democracy [2.60] The third main justification for protecting speech derives from the democratic structure of societies: if there are no restrictions on the speech which can be exchanged in the body politic then the outcome will be a healthier and more “pure” democracy. One view of the democracy argument considers the content of speech as information: access to information enables citizens to assess the workings and outcomes of the democratic processes and, accordingly, the quality of democracy will be improved. 35 A second view of the democracy argument considers the content of speech as normative or political opinion, where more speech will provide a wider choice of political views and ethical alternatives. The democratic argument gives rise to especially strong claims for the protection of factual speech relating to government and politics. This is because elected representatives have, first, an interest in silencing speech (it may, for example, prevent the exposure of information that would prevent them being re-elected) and secondly, they have the ability to silence speech by making restrictive laws. The democratic structure and operation of a society will thus be enhanced by the availability of information about politicians and the political process. Although the democratic rationale is traditionally seen as providing support for freedom of speech, it becomes substantially more complex when the content of speech is concerned not just with information but with norms and ethics. Here, a healthy democracy – facilitated by free speech – provides the conditions for moral agreement through consensus. 36 The argument is that a democratic political community might possibly agree on at least a basic set of acceptable (if not universal) moral principles. This democratic justification does not require that an ethical stance must be “true”; it only requires that there is a consensus on the position and that the consensus has been reached through democratic processes. But this brings with it a contradiction: while it might be essential to protect speech in order to have a healthy democracy, it might also be necessary to restrict speech for exactly the same reason. This may be a result of the circumstances in which communication takes place, or it may be required by the content of the consensus. First, it is implicit in the democratic rationale that there are no significant inequalities of power when people communicate. According to Schauer, it assumes that: 34

Abrams v United States 260 US 616 at 630 (1919).

35 36

Campbell in Sadurski and Campbell (eds), Freedom of Communication (1994), p 39. The approach draws substantially upon the work of German political philosopher, Jurgen Habermas, for whom the realisation of moral principles is possible through the exercise of reason. See J Habermas, The Theory of Communicative Action (Trans: T McCarthy) (1987), Vol 2.

12 [2.60]

Chapter 2 – Free Speech All of the participants in an exchange of views are of roughly similar ability to speak and roughly similar ability to understand; that neither the making nor the understanding of communications is distorted by bias; and that all of the participants in the deliberation will evaluate with care and sympathy the utterances of all others. 37

So, if democratic consensus requires equality in communication, it could well be argued that the state should act to remove inequalities in the communicative process and ensure that the silenced are heard and the powerful do not prevail in public discourse. 38 Secondly, consensus itself may dictate that speech should be limited. Where a democratic community agrees on a moral principle that should guide actions, then such a principle will provide a basis upon which to regulate speech. That is, the state can justifiably legislate to prevent the expression of ideas that are inconsistent with that consensus. For instance, the community may express the view (through its elected representatives) that it is of primary importance that individuals be entitled to live in the community without being vilified on the grounds of their race, and that the absence of vilification would also enhance the democracy. On this consensus, racial vilification laws can be justified as a legitimate restriction on speech. The preamble to the Racial and Religious Tolerance Act 2001 (Vic) provides a very clear articulation of this approach. The democratic rationale is thus a double-edged sword, both supporting and denying claims to free speech.

Constitutional expressions [2.70] Constitutional laws are the most significant of all the various laws that take account of free speech principles. It is in constitutional interpretation that the philosophy, history and politics of free speech become clearly visible in the law, and it is constitutional laws that most substantially limit the powers of the legislature to restrict speech. 39

Constitutional free speech in the United States: The First Amendment [2.80] On 4 July 1776, the American colonies formed the United States of America. Their Declaration of Independence from Britain captures the philosophical revolution of the age: 37

38

39

F Schauer, “Free speech in a world of private power”, in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 1-16. This assumption parallels Habermas’ concept of the “ideal speech situation”; Schauer (1994), p 6. On this aspect of Habermas, see W Outhwaite, Habermas: A Critical Introduction (1994), Ch 3. For different perspectives on the role of the state, see R Post, “Meiklejohn’s mistake: Individual autonomy and the reform of public discourse” (1993) University of Colorado Law Review 1109; O Fiss, “State activism and state censorship” (1991) 100 Yale Law Journal 2087. Constitutional comparisons are complex. A Stone, “The Comparative Constitutional Law of Freedom of Expression” in T Ginsburg and R Dixon (eds), Research Handbook on Comparative Constitutional Law (2011) considers a range of jurisdictions with clear points of comparison for Australia. In Europe, the Council of the European Union EU Human Rights Guidelines on Freedom of Expression Online and Offline, 12 May 2014, use comprehensive and clear links to the philosophical justifications, http://eeas.europa.eu/delegations/ documents/eu_human_rights_guidelines_on_freedom_of_expression_online_and_offline_en.pdf.

[2.80] 13

Australian Media Law We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In pursuance of such government, the US Constitution was ratified in 1788 and amended by the Bill of Rights in 1791. The First Amendment enshrines free speech rights: “Congress shall make no law … abridging the freedom of speech, or of the press ….” First Amendment jurisprudence is instructive in the Australian context for several reasons. First, much like the Australian High Court, the Supreme Court of the United States has the responsibility for interpreting the Constitution. As the benchmark expression of free speech rights, the First Amendment has been subjected to extensive interpretation and these philosophical justifications find their fullest judicial expressions in the Supreme Court cases. In this context, the development of the American position is a useful point of comparison for the Australian experience. Justice Oliver Wendell Holmes laid the foundations of First Amendment jurisprudence in 1919 with his opinion in Schenk v United States: speech could be restricted if there was “a clear and present danger that [the words] will bring about the substantive evils that Congress has a right to prevent”. 40 The more famous expression of the test came soon after in Abrams v United States with Holmes’ dissenting judgment (with Brandeis J concurring), this time using the clear and present danger test to protect speech: I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. …. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law … abridging the freedom of speech”. 41

The (concurring) opinion of Brandeis J in Whitney v California is perhaps the most evocative judicial defence of free speech. 42 Ms Whitney was convicted of a conspiracy-style offence because of her membership and activities in the Communist Labor Party. His Honour stated: Those who won our independence believed that the final end of the state was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. … They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage 40

Schenck v United States 249 US 47 at 52 (1919).

41

Abrams v United States 260 US 616 at 630-631 (1919). Richard Polenberg’s Fighting Faiths: The Abrams Case, The Supreme Court and Free Speech (1989) is a history of this case and provides an excellent insight into the political climate at the time to give a sense of the issues with which the Court had to engage. Whitney v California 274 US 357 (1927).

42

14 [2.80]

Chapter 2 – Free Speech thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. … It is the function of speech to free men from the bondage of irrational fears. … Those who won our independence … did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence …. 43

After the composition of the bench altered during the 1930s and the persistent dissents of Holmes and Brandeis gradually became the majority opinions, the clear and present danger test was applied regularly to support the protection of speech in a range of First Amendment cases. 44 However, different types of speech have been accorded differing levels of protection based on the refinement or varied application of the test. Subversive speech, 45 threats of violence, 46 racist speech, 47 defamation 48 and pornography 49 have been among the more contentious issues. 43

Whitney v California 274 US 357 at 376-377 (1927).

44

The dissents of the 1920s included Schaefer v United States 251 US 466 (1920); Pierce v United States 252 US 239 (1920); Gilbert v Minnesota 254 US 325 (1920); Gitlow v New York 268 US 652 (1925). See also Stone et al (1991), p 1051 for criticism of the continual dissent, and generally pp 1054-1055.

45

Subversive speech received little protection when the Court in the 1950s upheld convictions involving communist conspiracies for activities such as conspiring to advocate the overthrow of the government: Dennis v United States 341 US 494 (1951). Compare Australian Communist Party v Commonwealth (1951) 83 CLR 1, where proscribing legislation was struck down as unconstitutional, though not on a free speech basis: see H Charlesworth, “Individual rights and the Australian High Court” (1986) 4 Law in Context 52 at 62-63.

46

Chaplinsky v New Hampshire 315 US 568 (1942). Where there was an immediacy to the threat of violence, the Court adopted the “fighting words” doctrine whereby there would be no protection for words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”. The fighting words doctrine has not been applied in the US since Chaplinsky: Stone et al (1991), pp 1095-1100. In Australia the fighting words doctrine was drawn upon to support the validity of a criminal statute directed at insulting words: Coleman v Power (2004) 220 CLR 1; [2004] HCA 39. This has been criticised by D Meagher, “The “fighting words” doctrine: Off the First Amendment canvas and into the implied freedom ring?” (2005) 28 UNSWLJ 852.

47

In Brandenburg v Ohio 395 US 444 (1969), a Ku Klux Klan leader had been convicted following a rally and a speech; racist speech which did not pose a clear and present danger was protected. In Beauharnais v Illinois 343 US 250 (1952), a vilification style statute was held to be constitutionally valid as it fell into the category of libel (as a group libel) and thus racist speech was at the time excluded from the categories of speech protected by the Constitution. Conversely, the Supreme Court held in RAV v St Paul 120 L Ed 2d 305 (1992) that burning of a cross in the yard of a black family was constitutionally protected speech, cf Virginia v Black 155 L Ed 2d 535 (2003) where, the Court upheld the validity of a cross-burning statute.

48 49

New York Times v Sullivan 376 US 254 (1964). Although obscenity is not wholly protected by the First Amendment, statutes which have sought to outlaw pornography on the basis that it causes harm have been invalidated on First Amendment grounds: American Booksellers Association v Hudnut 771 F 2d 323 (7th Cir, 1985).

[2.80] 15

Australian Media Law

For all the change and inconsistencies in the US interpretations, the history and philosophy of free speech are crystallised in the First Amendment. 50 In Australia, the legal debate has rarely been so explicit in its articulation of the philosophical justifications for free speech.

Constitutional free speech in Australia: The implied freedom of political communication [2.90] The Australian Constitution does not include an equivalent to the First Amendment express guarantee of free speech. Although the American Constitution offered a model and inspiration for the Australian document, the period of history did not, for the most part, lead the framers of the document to feel it necessary to include such guarantees. The shift to Federation was not seen as a revolutionary one and, with the entrenchment of democracy in England and the United States indicative of a “civilising” progress, formal protections from the state were not required. 51 The protection of liberty could be safely left to the common law and legislatures which were representative of and responsible to the people. 52 It was not until 1992 that the High Court considered in any detail the proposition that there may be implied into the Constitution a legal right to free speech, at least on matters of government and politics. 53 In the landmark cases of Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV) the Court held by majority that the representative nature of Australian government was the basis upon which a freedom of political communication was implied into the Constitution. 54 The legislative powers of the Commonwealth are thus limited by the implied freedom of communication. Similarly, it is now well established that the freedom will apply equally to “the formulation of common law principles”. 55 In these early cases the nature of the freedom was unsettled. The judgments express various views about why such a freedom can be implied. Some judgments suggested that the 50

See L Bollinger and G Stone (eds), Eternally Vigilant: Free Speech in the Modern Era (2002) for an excellent exploration of the First Amendment by leading US scholars.

51

On the emergence of libel laws and a culture of free speech (or otherwise) in Australia, see Edgeworth (1990); R Pullan, Guilty Secrets: Free Speech and Defamation in Australia (1994), especially Chs 4-6. Charlesworth (1986). See also Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135-136 (per Mason CJ), 182, 186 (per Dawson J); Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 127-128 (per Mason CJ, Toohey and Gaudron JJ), 159-160 (per Brennan J), 166-170 (per Deane J), 200-201 (per McHugh J).

52

53

In several dissenting judgments, Murphy J foreshadowed the identification of an implied right to free political speech in the Australia Constitution: McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633 at 670; Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 88; Miller v TCN Channel Nine (1986) 161 CLR 556 at 581-582.

54

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. The Court was comprised of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. Dawson J dissented on the existence of the implied right. Brennan J held that there was an implied right, but in Australian Capital Television dissented with respect to the bulk of the legislation on the basis that most provisions were proportionate to the legitimate interest the restriction on speech was intended to serve.

55

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; Coleman v Power (2004) 201 CLR 1 at [195] (per Gummow & Hayne JJ); Wotton v Queensland (2012) 246 CLR 1 at [20] (per French CJ, Gummow, Hayne, Crennan & Bell JJ).

16 [2.90]

Chapter 2 – Free Speech

freedom could be implied because the Constitution established a representative democracy, while others grounded the implication in the narrower idea of “representative government”. 56 The idea of representative democracy as a basis for free speech received more extensive support in the 1994 cases of Theophanous and Stephens. 57 Theophanous is noted for the court’s extension of the implied freedom to include a “constitutional defence” to a defamation action and was as close as the court has come to finding a “personal right” to free speech, as opposed to a limitation on legislative power. 58 Dawson J was the sole dissenter in the 1992 and 1994 free speech cases on the issue of whether some form of implied freedom of political communication existed in the Constitution. The rights and freedoms in a democratic society exist, he says: not because they are provided for, but in the absence of any curtailment of them. Freedom of speech … is a concept that finds no expression in our Constitution, notwithstanding that it is as much the foundation of a free society here as it is [in the United States]. … [I]n this country, the guarantee of fundamental freedoms does not lie in any constitutional mandate but in the capacity of a democratic society to preserve for itself its own shared values. 59

In the end, however, neither the resistance of Dawson J nor some of his colleagues’ more expansive interpretations would last. Lange v Australian Broadcasting Corporation came before the Court in 1997. 60 The former Prime Minster of New Zealand had commenced action against the ABC for defamatory imputations broadcast in a Four Corners current affairs program in 1990. The defendant relied on the “constitutional defence” identified in Theophanous. The court held that Theophanous was no longer good law and substituted an extended form of qualified privilege. 61 The new law was not a boon for press freedom; the court indicated that a media outlet would face fairly 56

Mason CJ and Brennan J based their decisions on representative government, but representative democracy also had some significance. McHugh J focussed on representative and responsible government, finding that the implication turned on the provisions of the Constitution – especially ss 7 and 24 – which establish a form of government where Senators and Members of the House of Representatives are “directly chosen by the people”. Brennan J also paid some attention to the text and structure arguments. Deane and Toohey JJ discussed the notion of representative government, but without the express focus on ss 7 and 24 which became the foundation of the later Lange decision. The approach of Gaudron J relied more explicitly on representative democracy for the implication. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135-140 (per Mason CJ); 168 (per Deane and Toohey JJ); 210-211, 215 (per Gaudron J); 227-233 (per McHugh J); Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 46-50, 60 (per Brennan J); 70-73 (per Deane and Toohey JJ).

57

Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at, for instance, 123, 130 (per Mason CJ, Toohey and Gaudron JJ); cf at 199-201 (per McHugh J, dissenting). Stephens v West Australian Newspapers (1994) 182 CLR 211 at 233-234 (per Mason CJ, Toohey and Gaudron JJ). The distinction between representative democracy and representative government appears once again: see McHugh J at 199-201 and Dawson J at 189. See also Cunliffe v Commonwealth (1994) 182 CLR 272, and later McGinty v Western Australia (1996) 134 ALR 289. Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 208 (per Mason CJ, Deane, Toohey and Gaudron JJ; Brennan, Dawson and McHugh JJ dissenting). Theophanous v Herald & Weekly Times (1994) 182 CLR 104 at 183 (per Dawson J). Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The Court also considered the implied freedom in Levy v Victoria (1997) 189 CLR 579 decided at the same time. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 556.

58 59 60 61

[2.90] 17

Australian Media Law

onerous requirements to establish that it had acted reasonably in publishing information that later turned out to be wrong. 62 The unanimous decision from all seven Justices was suggestive of consolidation and compromise in order to provide certainty about the nature of the freedom and the extent of its application. For the derivation of the freedom, the court relied primarily on the text of the Constitution, especially ss 7 and 24: [T]he Constitution intended to provide for the institutions of representative and responsible government … Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates …. 63

That system of government demands a “freedom of communication between the people concerning political or government matters which enables the people of the Commonwealth to exercise a free and informed choice as electors”. 64 The nature of the freedom was illustrated with a contrast between the Australian and US positions: Unlike the First Amendment … which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution. 65

Lest there be any doubt, it was noted that the freedom “operates as a restriction on legislative power” and the Constitution does not “confer personal rights on individuals”. 66 Accordingly, rights-based jurisprudence from other jurisdictions has had a limited influence in subsequent decisions. 67 The narrow constitutional approach contrasts with the jurisprudence that has emerged under legislative instruments such as the Victorian Charter of Human Rights and Responsibilities (2006). 68 The freedom is not limited to communication between the electors and members of the Parliament. It extends to communication among the electors. 69 Communication between electors has been identified as being “at the very heart of the

62 63

64 65

66 67 68 69

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573-574. See further [3.970]-[3.990]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 559-560. See further [3.970]. At 557-559, the principal sections relied on were ss 7 and 24 of the Constitution, but these were supported by ss 1, 6, 8, 13, 25, 28, 30, 49, 62, 64, 83 and 128. There is also a reference to the Constitutional debates of 1897. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567. For comparisons with the UK and New Zealand, see, respectively, Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 and Lange v Atkinson [2000] 3 NZLR 385. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, 561. Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41 at [45]-[52]. Kracke v Mental Health Review Board [2009] VCAT 646; XYZ v Victoria Police [2010] VCAT 255. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [4], [11] (per Gleeson CJ); [73], [102] (per Gaudron, McHugh & Gummow JJ); [170] (per Kirby J); [221]-[225] (per Hayne J).

18 [2.90]

Chapter 2 – Free Speech

freedom”. 70 It cannot be confined to the election period, since most of the matters necessary to enable people to make an informed choice will occur after the holding of one election and before the calling of the next. If the freedom to receive and disseminate information were to be confined to election periods then the electors would be deprived of the greater part of the information necessary to make an effective choice at the election. 71 The constitutional freedom operates within limitations. First, the freedom is not a general one. Legislative power and the reach of the common law are limited only with respect to political communication. Secondly, under Lange and subsequent decisions, the parliament may make a law that restricts political communication if the law is “reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”. 72 The common law is similarly limited. A law that satisfies these conditions will not offend the constitutional freedom of political speech. However, such a determination is not straightforward. The courts have not provided a clear indication of what constitutes political communication and there is a significant degree of discretion in the interpretation and application of the second limb. The cases nevertheless provide some guidance. The High Court held in Levy (decided on the same day as Lange) that, for safety reasons, animal-rights protesters could be prevented from entering a duck-shooting area even though there would be an incidental impairment of the Constitutional freedom of political communication. 73 Similarly, it was suggested that a law banning bonfires to prevent an outbreak of bushfires may validly outlaw a bonfire that has a political effigy as its centrepiece. 74 It should be reiterated that “communication” was not limited to written and spoken words. It extends to non-verbal communication, and covers communication by, for example, signs, symbols, gestures and images. 75 In the Rabelais case, the question arose as to whether a law which effectively prohibited publication of material which “instructs in matters of crime” would infringe the implied 70

71 72

73 74 75

Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [73] (per Gaudron, McHugh & Gummow JJ); see the joint judgment also at [102]; [4], [11] (per Gleeson CJ); [170] (per Kirby J); [221]-[225] (per Hayne J). An interesting point of comparison is Langer v Commonwealth (1996) 186 CLR 302. Note Dawson J at 326-327, in a not-so-subtle criticism of the majority, who found against Langer on other grounds: “the exhortation or encouragement of electors to adopt a particular course in an election is of the very essence of political discussion”. On electoral matters, see also Mulholland v Australian Electoral Commission (2003) 128 FCR 523. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561-562; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [91]-[96] (per McHugh J); [195]-[196] (per Gummow & Hayne JJ); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [58] (per McHugh J); [213] (per Gummow J); [346]-[348], [362] (per Kirby J); Hogan v Hinch (2011) 243 CLR 506 at [47] (per French CJ), [97] (per Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ). Levy v Victoria (1997) 189 CLR 579 at 595 (per Brennan CJ); 609 (per Dawson J); 614 (per Toohey and Gummow JJ); 619-620 (per Gaudron J); 627 (per McHugh J); 648 (per Kirby J). Levy v Victoria (1997) 189 CLR 579 at 595 (per Brennan CJ). Levy v Victoria (1997) 189 CLR 579 at 594-595 (per Brennan CJ); 613 (per Toohey and Gummow JJ); 622-623 (per McHugh J); 638 (Kirby J).

[2.90] 19

Australian Media Law

freedom. 76 A university student newspaper published critical comments on capitalism and poverty and then set out “a step by step guide to shoplifting”. 77 This was refused classification by the censors, thus restricting publication. The Full Court of the Federal Court held that the scope of “political discussion” was “broad and generous” but instruction in crime was not political discussion. 78 Moreover, even where an article might be categorised as political discussion in spite of instructing in matters of crime, a law restricting publication would still be valid because, under the Lange test: the law would have a legitimate object in the prohibition of crime; it would be compatible with representative government; and it would be reasonably and appropriately adapted to its legitimate object. 79 However, a law which sought to prevent publication of material which merely informed a reader about crime (rather than instructing in crime) would not be valid. 80 In Coleman v Power, the High Court addressed the validity of a statute that made it an offence to use “threatening, abusive or insulting words” in a public place. 81 Although different members of the court approached the issue in different ways and came to different conclusions, it seems clear enough that laws of this kind which have the effect of restricting political communication will be valid provided that they are fairly clearly designed to maintain public order in the sense that physical violence is to be prevented. 82 However, the case leaves open the possibility that insult-based laws which restrict political speech may be valid even if they are not closely directed at public order in this sense. 83 In 2013 the High Court in Monis v R considered the validity of a law that criminalised the use of a postal service in ways that a reasonable person would regard as “offensive”. It was held that this law was invalid; political communications may be offensive such that the freedom is effectively burdened, and the rationales for the law – particularly preventing offence – did

76 77 78

79

80 81 82 83

Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 (the Rabelais case). Special leave to appeal to the High Court was refused 11 December 1998. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 246-252. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 243, 244-246 (per Heerey J); 258 (per Sundberg J); cf French J at 238 who suggests the article in question, even though it did instruct in matters of crime, might be legitimately have been construed as political discussion nevertheless. Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 238-239 (per French J); 246 (per Heerey J, though he did not find it necessary to decide the question); 258 (per Sundberg J). Brown v Members of the Classification Review Board of the Office of Film & Literature Classification (1998) 82 FCR 225 at 239-240 (per French J); 257 (per Sundberg J). Coleman v Power (2004) 201 CLR 1; [2004] HCA 39. Coleman v Power (2004) 201 CLR 1; [2004] HCA 39 at [15] (per Gleeson CJ); [102] (per McHugh J); [198] (per Gummow & Hayne JJ); [256] (per Kirby J). Coleman v Power (2004) 201 CLR 1; [2004] HCA 39 at [23] (per Gleeson CJ); [295]-[300] (per Callinan J); [330]-[336] (per Heydon J).

20 [2.90]

Chapter 2 – Free Speech

not satisfy the second limb of Lange. 84 As a result, the appellant, who had sent letters to the parents of Australian soldiers killed in Afghanistan, denigrating their sons, could not be prosecuted on that charge. It is clear that a very broad range of topics fall within “government and political matters” – perhaps even all “social and economic features of Australian society” 85 – but one cannot assume that any law affecting speech will infringe the freedom. First, the effect of a statute must still be interpreted carefully; in Evans, it was held that the challenged statute would not in fact restrict many of the actions which were proposed as forms of protest against the Pope’s visit for World Youth Day. 86 Heydon J has warned against assuming that, simply because it is common practice to concede that the first limb of Lange has been met, the first limb will always be met. 87 Turning to the second limb, the nature of the infringement – “direct” or “incidental” – will be relevant, with direct infringements being more difficult to justify. 88 On the whole, however, and even where infringement seems to be direct, the recent cases tend to suggest it will be difficult to persuade a court that a law is invalid. 89 The scope of the freedom has been the subject of debate in two important respects. First, the freedom to discuss matters of government and politics may apply in some circumstances to discussion of the judicial branch of government. For example, the freedom may protect speech concerning the dismissal of a judge or magistrate because the process of dismissal operates through the other arms of government. 90 But, as Spigelman CJ indicated in the New South Wales Court of Appeal, “[t]he conduct of courts is not, of itself, a manifestation of any of the provisions relating to representative government upon which the freedom is based”. 91 In the High Court in APLA v Legal Services Commissioner (NSW), McHugh J reinforced this statement when he stressed that the freedom of communication would only apply to matters concerning the judiciary if they “involve, expressly or inferentially, acts or omissions of the legislature or the Executive Government”. 92 These matters may include “discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts” but would not ordinarily include discussion of the reasoning or the conduct of judges. 93 The court also considered the proposition that there may be an implied freedom of legal communication that derives from Chapter III of the 84

85 86 87 88 89 90 91

92 93

Monis v The Queen (2013) 249 CLR 92 (per French CJ at [67], [71]-[73]; Hayne J at [171], [176]-[184], [185]ff, especially [220]-[222]; Heydon J at [236]; Crennan, Kiefel & Bell JJ dissenting on the grounds that the second limb of Lange was satisfied [344]-[352]. Hogan v Hinch [2011] HCA 4 at [49] (per French CJ). Evans v New South Wales (2008) 168 FCR 576; [2008] FCAFC 130 at [53]-[59] Wotton v Queensland (2012) 246 CLR 1 at [41]. Hogan v Hinch [2011] HCA 4 at [94]ff. Hogan v Hinch [2011] HCA 4; Becker v City of Onkaparinga (2010) 108 SASR 163; [2010] SASCFC 41; McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286. Popovic v Herald & Weekly Times Ltd [2002] VSC 174 at [38]. John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 at [83]. The crime of contempt by scandalising the court currently still stands as it was in Gallagher v Durack (1983) 152 CLR 238. It is ripe for reconsideration. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65] (per McHugh J). APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65] (per McHugh J).

[2.90] 21

Australian Media Law

Constitution (which establishes the federal judicature) and which serves “to protect the integrity and operation of the judicial branch of government”. 94 In the APLA case, which was concerned with restrictions on the ability of lawyers to advertise their services, this found little support. 95 However, where issues are less commercially oriented it might be appropriate to put this argument to the High Court again with a greater prospect of success. 96 Secondly, it has been apparent since Lange that although the freedom derives from the Commonwealth Constitution it may also place a limitation upon the powers of the States to make laws because of the “increasing integration of social, economic and political matters in Australia”. 97 This proposition has been steadily reaffirmed in subsequent litigation. 98 It does not necessarily mean that all state matters will be affected by the implied freedom. 99 However, the great extent of cooperation between State and federal governments prompted the Chief Justice to observe in Hogan v Hinch that it is “difficult to identify subjects … [not] of concern to the national government”. 100 The majority in that case appeared to proceed on the basis that a connection could be presumed and, only if the law was invalid, would it be necessary to ask whether “there is an insufficient connection with any ’federal issue’ to attract the implied freedom”. 101 The decision in Lange represents a landmark in the law and jurisprudence of free speech in Australia. The unanimous joint judgment provided a certainty which had been hitherto unimaginable. The resistance of Dawson J gave way (quite legitimately under the doctrine of stare decisis), while the broader “representative democracy” foundations were tempered. 102 The approach of McHugh J in Australian Capital Television has ultimately prevailed: the implied freedom of political communication derives from the text and structure giving rise to a system of representative and responsible government which is “part of the fabric on which the 94 95

APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [343] (per Kirby J). APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [30]-[35] (per Gleeson CJ & Heydon J); [240]-[253] (per Gummow J); [384]-[396] (per Hayne J); [472]-[473] (per Callinan J).

96

The argument found some favour in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [72]-[91] (per McHugh); [343]-[350] (per Kirby J). See also N Aroney, “Lost in translation: From political communication to legal communication?” (2005) 28 UNSWLJ 833. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-572. In Levy v Victoria (1997) 189 CLR 579 most members of the Court did not find it strictly necessary to answer the question and generally accepted as a presumption the defendant’s concession that some implied freedom would exist either by virtue of the State Constitution or the integration argument: at 609 (per Dawson J); at 610 (per Toohey and Gummow JJ); at 619-620 (per Gaudron J); at 626 (per McHugh J) at 643-644 (per Kirby J); though cf Brennan CJ at 595-596 where the argument was rejected with regard to the Victorian laws in question. Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [159] (per Kirby J) and [223] (per Hayne J); Coleman v Power (2004) 220 CLR 1; [2004] HCA 39; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403; McClure v Mayor & Councillors of the City of Stirling [2008] WASC 286 at [71]-[95]. For example, John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2000) 158 FLR 81; [2000] NSWCA 198 at [86]-[89] (per Spigelman CJ).

97

98

99 100 101 102

Hogan v Hinch [2011] HCA 4 at [48] (per French CJ). Hogan v Hinch [2011] HCA 4 at [99] (per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Although the latter proposition may perhaps seem at odds with the statement by Gleeson CJ in Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [12] that “The freedom of political speech [is] inherent in the Constitution concept of representative democracy”, there seems little question that the Lange reasoning was viewed by the Chief Justice as the basis for the freedom.

22 [2.90]

Chapter 2 – Free Speech

written words of the Constitution are superimposed”. 103 Even if there remains uncertainty in some areas, and even if there have been few laws found to be invalid, the implied freedom is firmly entrenched, unquestionably informs the actions of legislatures, and is a key constitutional freedom upon which the citizenry will continue to rely. 104

The implied freedom and philosophical justifications for free speech [2.100] The nature of the implied freedom is of interest when considered against the background of the philosophical justifications for free speech. Although the implied freedom has been formally derived from the text and structure of the Constitution, democratic justifications are still relevant. 105 This is because there is an explicit focus on government and politics, and the second limb of the Lange test requires that restrictions on speech be reasonably and appropriately adapted to the fundamentally democratic objectives of effecting representative and responsible government. A comparison of the philosophical rationale for why speech should be free versus the operation of the law reveals some distinctly democratic contradictions in the implied freedom. These contradictions turn on how the freedom comprehends the relationships of power between the state, the individual, and corporate or wealthy interests. They are exemplified in the ACTV case. 106 In ACTV, the Commonwealth had sought to restrict the broadcast of paid political advertising on the electronic media during election periods; in its place broadcasters would be required to make broadcast time available free of charge during this period. 107 It did not prohibit news and current affairs, nor talkback radio. The plaintiff television station argued that the provisions impaired the freedom of citizens to discuss public and political affairs by restricting broadcasters’ freedom to broadcast and by restricting the access of political parties and others to express views with respect to public and political affairs on the electronic media. 108 The Commonwealth argued that the legislation was necessary and proportionate in order to ensure the integrity of the political process which was endangered by the high costs of advertising and the accompanying risk of undue influence from donors, and to avoid the 103

104

105

106 107 108

Commonwealth v Kreglinger & Fernau Ltd and Bardsley (1926) 37 CLR 393 at 413 (per Isaacs J), cited in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 135 (per Mason CJ); 230 (per McHugh J). Callinan J suggested it should be completely revisited: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 331; Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [285]. Heydon J has made strident remarks to the same effect in Monis v R (2013) 249 CLR 92 at [243]-[251], suggesting that an examination of the foundations of the implied freedom “may reveal that it is a noble and idealistic enterprise which has failed, is failing, and will go on failing”. However, there seems no other judicial appetite for a wholesale review. For a detailed, critical analysis of the relationship between the rationales and the implied freedom see D Meagher, “What is “political communication”? The rationale and scope of the implied freedom of political communication” (2004) 28 MULR 438. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. Political Broadcasts and Political Disclosures Act 1991 (Cth). Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 129 (per Mason CJ).

[2.100] 23

Australian Media Law

“trivialising” of political debate through brief advertisements. 109 The legislation was based upon substantial research which examined electoral processes in 19 countries and concluded there was merit in the argument that “the advertising industry’s loss might be democracy’s gain”. 110 The Commonwealth had made laws to improve the health of our democracy. The court declared the legislation invalid because it was an infringement on freedom of speech. The decision has been criticised for its failure to adequately comprehend the role of corporate power in political discussion. 111 Fraser has argued that the case reflects a shallow understanding of freedom: Freedom of communication as understood by the High Court, appears to mean that anyone who wants to communicate a political message should be free to do so, so long as that person has the money to pay for the privilege. … The court shows no apparent concern over the power of such moneyed interests to drown out or distort other voices that lack the financial and organisational resources to make themselves heard. 112

More recently, Unions NSW v New South Wales provides an interesting contrast. The High Court considered the validity of laws limiting political donations. It was held that the laws burdened the freedom of political communication because reduced donations would lessen the power to communicate, and that they were invalid because – in this instance – the “wide, but incomplete” restrictions could not be said to constitute a legitimate end for the purposes of the second limb of Lange. 113 The significance of corporate power and influence – and the appropriate regulatory responses – have been the subject of intense debate in recent years. In the UK the “phone hacking” scandal uncovered in 2011 (by the press, rather than the authorities) has seen arrests, trials, jailing of journalists, acquittals and accusations of inappropriate prosecutions. The News of the World newspaper closed, with media owners, executives and police appearing before Parliamentary committees. The press regulatory body was shut down and replaced. Trials continue at the time of writing. When corporate power impacts on the political process, the traditional opposition between the citizen and the state which has dominated the history and philosophy of free speech may be challenged in ways not traditionally considered by free speech jurisprudence. Constitutionally, the position now is perhaps even more troublesome than it was prior to Lange. As Adrienne Stone has argued so persuasively, the court has by no means extricated 109 110

111

112 113

Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 129-131 (per Mason CJ). Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 161 (per Brennan J) referring to Who pays the piper calls the tune, Report No 4 of the Joint Standing Committee on Electoral Matters (June 1989). Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994); cf Brennan J in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 159-162 who presents a critical reflection on media power. See also N Douglas, “Freedom of expression under the Australian Constitution” (1993) 16 UNSWLJ 315. A Fraser, “False hopes: Implied rights and popular sovereignty in the Australian Constitution” (1994) 16 Syd LR 213 at 225. Unions NSW v New South Wales (2013) 304 ALR 266 at [38], [44]-[60] (per French CJ, Hayne, Crennan, Kiefel & Bell JJ). Anne Twomey provides an excellent analysis of the case in Unions NSW v State of New South Wales, paper presented at the Gilbert & Tobin Centre for Public Law’s Constitutional Law Conference, 14 Feb 2014, http://bit.ly/1aghYZ0.

24 [2.100]

Chapter 2 – Free Speech

itself from such problems by using a textual foundation for the implied freedom. On the contrary, the absence of theoretical engagement regarding the nature of the freedom means that the court has no basis upon which to make decisions about how the freedom should operate. The question of “the ultimate values that the freedom of political communication ought to serve” remains for determination. 114

Limits and challenges to free speech [2.110] Traditional free speech jurisprudence emphasises the need to prevent the state limiting the speech of its citizens. Schauer argues that it is not necessarily the case that at all times and in all places the state is the only actor that has the power to impact upon communication between citizens. 115 He argues that private power might sometimes be more significant than state power. Private interests, such as multinational corporations and media organisations, might well be able to limit, distort or manipulate communication. This may occur by the exercise of influence or control over information and opinions that are available to the public, the information and opinions that citizens can voice to the public, and the means of communication that citizens can use. In this light, restrictive state regulation may benefit rather than hinder the pursuit of truth and democracy. Schauer does not argue that this is in fact the case at present, or indeed that it has been at any given time. Instead, he presents a more modest argument. We have to ask, he says, what the negative consequences of state regulation will be: will the consequences outweigh the positive effects of intervention? The answer, he says, will be dependent upon the circumstances: There are reasons to believe that free speech principles [preventing government from restrictively regulating speech] will be good at some times and places, but there are fewer reasons to believe that the necessity of them [is] atemporal, ahistorical and a universal imperative. 116

Schauer’s critique sits well with the exercise of media power, but his contentions also open up a range of possibilities that have not been sufficiently (if at all) contemplated by the traditional rationales for free speech. The analytical framework he provides can also be adapted to make a case for a dynamic force of what might be termed “cultural power”, as distinct from state or private power, which might similarly distort communication. First, let us accept that the basis for regulating or protecting speech is not necessarily the citizen-state relationship but, rather, that regulation and protection are context-dependent. Contextual factors may include the nature and extent of private power in any given circumstances. If that is the case then it leaves open other contextual possibilities: might there be significant dynamics of power which are neither state nor private, and which may be more or less benign at different historical 114

A Stone, “The Limits of constitutional text and structure: Standards of review and the freedom of political communication” (1999) 23 MULR 668 at 699. Stone’s critique has become a central theme of debate. See, for example, Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [83]ff (per McHugh J); A Stone, “The limits of Constitutional text and structure revisited” (2005) 28 UNSWLJ 842; N Aroney, “Justice McHugh, representative government and the elimination of balancing” (2006) 28 Syd LR 504.

115 116

Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994). Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), pp 12-13.

[2.110] 25

Australian Media Law

moments, and may at certain times and places be just as important as state or private power? It is the suggestion here that forms of power embedded in culture – for example, race – might demonstrate such possibilities. Secondly, racialised forms of cultural power are more difficult to identify as power because they frequently appear not as contestable claims to power, but as untouchable and fixed claims about identity. The identification and recognition of such forms of power illuminates the manipulation of discourses of liberty, and the ways in which the rhetoric of “free speech” – the celebration of public discourse 117 – can become a justification for the exclusionary exercise of cultural power. How does this occur in Australian politics and society? Over the last two decades race and, more recently, religion have emerged as key dimensions of cultural power in Australian politics and law. From the 1970s until the mid-1990s the country saw an expansion of multiculturalism policies and an increase in cultural diversity. Negative racial dynamics then became increasingly manifest in the years following the election of Ms Pauline Hanson to the Lower House of the Commonwealth Parliament in March 1996. Her maiden speech included, for instance, the claim that “we are in danger of being swamped by Asians”. 118 Race does not only refer to, for instance, Asianness or Aboriginality (which were two key foci of One Nation politics), but also to whiteness – the Anglo-Australian race, which Ms Hanson would have us believe is “truly” Australian. The Prime Minister at the time, Mr Howard, commented: One of the great changes that has come over Australia in the last six months is that people do feel able to speak a little more freely and a little more openly about what they feel. In a sense a pall of censorship on certain issues has been lifted. …I welcome the fact that people can now talk about certain things without living in fear of being branded as a bigot or as a racist. 119

Since 2001, religion has become a similar site for contesting and defining identity. This has been especially apparent where Islamic communities are concerned and, even more so, where there is a conflation of race and religion. 120 The claim to be “Australian” is thus expressed through competing interpretations of national identity; a dynamic form of power emerges in Australian politics and culture through this competition to define identity. 121 These trends have continued to be observable and since 2011 can be very clearly seen in debates surrounding proposals for the repeal of racial vilification laws and opposition to those proposals. The most controversial issues have revolved around proposals to repeal of s 18C of the Racial Discrimination Act 1975 (Cth) which relate to offensive and insulting acts. 122 117 118

Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 5. House of Representatives, Parliamentary Debates (Hansard), 10 September 1996, p 3862.

119

Speech to the Queensland division of the Liberal Party, 22 September 1996. See also Mr Howard’s reflections on that speech where he emphasised that free speech should only be exercised “in a tolerant and moderate fashion”: House of Representatives, Parliamentary Debates (Hansard), 30 October 1996, p 6159. S Poynting, G Noble, P Tabar and J Collins, Bin Laden in the Suburbs: Criminalising the Arab Other (2004). L McNamara, “The things you need: Racial hatred, Pauline Hanson and the limits of the law” (1998) 2 Southern Cross Law Review 92.

120 121 122

Eatock v Bolt [2011] FCA 1103; Freedom of Speech (Repeal of s 18C) Bill 2014 – Exposure Draft, http://www.ag.gov.au/consultations/pages/ConsultationsonamendmentstotheRacialDiscriminationAct1975.aspx; K Magarey, The Attorney-General’s suggested changes to the Racial Discrimination Act 1975 Parliamentary Library Research Paper, 5 June 2014. For examples of the contrast in views see the Replacement Explanatory Memorandum to the Racial Discrimination Amendment Bill 2014, tabled by http://

26 [2.110]

Chapter 2 – Free Speech

Schauer’s critique of private power helps us think about how free speech functions in this environment. While his concern is that traditional free speech principles do not take account of the way private power affects inequalities and bias among participants in communication, his analysis of the assumptions of equality and rationality can also be applied to cultural power. Racialised politics works on the basis that there is no equality in the communicative process and that participants will not “evaluate with care and sympathy the utterances of all others”. 123 It works precisely on the notion that some participants can be excluded not merely through representation in state actors or institutional bodies of private power (typically the media), but in day-to-day life through the experience of culture. Racialised politics rests on the marginalisation of certain racial identities independently of the actions of state power or institutional private power. Similarly, an assumption of rationality is not applicable. On the contrary, racialised politics works on the basis that there is not a rationality among communicators. Rather than knowing truth when we see it, the manipulation of racial power and national identity relies on the proposition that people will accept false propositions when they are said more often or more convincingly. 124 It presumes that given our biases and prior beliefs, a proposition may continue to be believed regardless of whether it is proved true or not. 125 Schauer’s challenge to the assumption’s applicability in a world of private power is at least as applicable with respect to racial power. This is not to say that all discussions of race, religion, immigration or vilification laws are tainted by manipulation of assumptions and power. On the contrary, there is much discussion of these issues, on all side of the debates, which is thoughtful, inclusive and very insightful. It is to say, though, that any presumption that state power is necessarily the most dangerous form of power is clearly troubling. Moreover, it may not be helpful to think of private power as the only challenger. Cultural power appears to be distinct from state and private power, being interdependent with them, rather than dependent upon them. The power of speech and the deployment of free speech rhetoric should not be underestimated, especially in their capacity to construct identity that includes some and excludes others. Since the first edition of this book was published, issues of race have been paramount in Australia. The government won re-election in 2001 on a platform of border protection in which asylum seekers were not to be allowed on to Australian shores to claim refugee status as the Prime Minister repeatedly declared, “We decide who comes to this country and the circumstances in which they come”. 126 It is the terms “we” and “they” that are

123 124 125

126

parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s978_ems_80f3b48d-026c-4d0f-b2ef601f89584a93/upload_pdf/14211repem.pdf and the range of publications about s 18C on The Conversation http://theconversation.com/uk/topics/section-18c. See further [9.30], [9.60]-[9.80], [9.290]-[9.350].. See note 37 and the accompanying text. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 8. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 8. For instance, at the launch of the One Nation immigration policy, a journalist pointed out that the One Nation immigration figures were incorrect; the criticism was ignored. There was simply no need for the figure to be correct. See Sydney Morning Herald (3 July 1998), p 1. D Marr and M Wilkinson, Dark Victory (2003).

[2.110] 27

Australian Media Law

operative. Our sense of ourselves – and of others – relies, in David Stannard’s words, on “the availability of a deep well of national and cultural consciousness that consigns whole categories of people to the distant outback of humanity”. 127 Reports on immigration detention provide points of reflection against which the movement from speech to policy might be considered. 128 These cultural and political tides have ebbed from time to time, but race, religion and national identity are regularly conflated and confused in public discussion about citizenship, discrimination, immigration and Australian values. 129 Conceptualising speech and power in cultural terms has significant implications for thinking about both the substance of free speech debates and the legal regulation of speech. One of the most interesting recent contributions to these debates has been made by Katherine Gelber in her book, Speech Matters. 130 She is especially concerned with the democratic importance of free speech, though notably she does not argue for anything approaching an absolutist view of free speech. Exploring six different areas where, she argues, widely held commitments to free speech principles “fracture” easily – uses of the Australian flag; terrorism and sedition; hate speech; public protest; the actions of corporations; and artistic expression – Gelber asks, “What is it in Australian political and legal culture that allows … violations of free speech to occur without public uproar?” It is, significantly, in culture – rather than law – that free speech commitments are to be understood and nurtured: The problem of free speech restriction and limitation in this country are too enormous, too multifaceted and too complicated to be resolved by regulatory or legal responses alone. The only meaningful way this can be addressed is by changing political culture [so that the public and the regulatory authorities begin to nurture and favour freedom of speech].

Freedom of speech is not as simple as former Prime Minister Howard’s “pall of censorship” phrase suggests, and it is clearly multidimensional, but this does not mean traditional liberal free speech principles are to be easily dismissed. For example, an array of counter-terrorism laws have restrictive implications for the freedom of citizens to speak and for the ability of the media to report on matters of public interest, and the traditional state-citizen opposition is a useful way to consider the significance of these laws. 131 However, the context in which free 127 128

D Stannard, American Holocaust: Columbus and the Conquest of the New World (1992), p 254. Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention, 2014; P Moss, Review into recent allegations relating to conditions and circumstances at the Regional Processing Centre in Nauru, Dept of Immigration and Border Protection, 6 February 2015, https://www.immi.gov.au/about/dept-info/nauru.htm.

129

Human Rights and Equal Opportunity Commission, Isma- Listen: National Consultations on Eliminating Prejudice Against Arab and Muslim Australians (2004); Human Rights and Equal Opportunity Commission, Report to the Department of Immigration and Citizenship on the Unlocking Doors Project (2007); Australian Human Rights Commission, In Our Own Words (2010). K Gelber, Speech Matters: Getting Free Speech Right (2011) Criminal Code (Cth), ss 80.2 – 80.3; K Gelber, “When are restrictions on speech justified in the war on terror?” in A Lynch, E MacDonald and G Williams, Law & Liberty in the War on Terror (2007), 138-146; A Lynch and G Williams, What Price Security? (2007); L McNamara, “Closure, caution and the question of chilling: How have Australian counter-terrorism laws affected the media?” (2009) 14 MALR 1; F Moorhouse, “The writer in a time of terror” (2006-07) (Summer) 14 Griffith Review 11.The effects of counter-terrorism laws on speech have of course been the subject of extensive discussion in Europe and the US. See for example,

130 131

28 [2.110]

Chapter 2 – Free Speech

speech arguments appear needs to be closely examined before agreeing to the traditional analysis at any given time or place. 132 For Schauer: It is only by considering the relationship between free speech and private power, and only by considering speech as both a manifestation of power and a process that is influenced by its distribution, that we can fully consider all of the consequences involved. 133

To this it may be added that other aspects of power may, at certain times and places, be more significant than liberal free speech discourse can acknowledge. In the cultural construction of meaning with respect to identity and race, there is a construction of liberal discourse itself through the appropriation of language, through the very use of “free speech” as a tool of cultural, political and legal rhetoric. The argument here is not that the law be an instrument of regulation in restricting political discussion, but that to understand free speech (and its limits) in a legal context, it is essential to understand how speech might be manipulated in ways a narrow legal discourse cannot comprehend. If there is any one singular phenomenon or trend that warrants attention for its effects on free speech, it is the way that technology has affected how we communicate and the reach of our voices, as well as the ability of states and corporations to discover what we are saying even when we intend it to be private. Throughout this book there are, of course, cases and statutes in every area that grapple with technological developments. The jurisprudence of free speech, however, has tended to move more slowly, with its traditional rationales providing the anchor of principle against which the law might evolve. But free speech scholarship is moving. Perhaps the most significant work, and one likely to become a benchmark in thinking about the ways that speech now functions, is Monroe Price’s recently published Free Expression, Globalism and the New Strategic Communication. 134 For those casting their eyes to the future, it is a superb study of how freedom of expression principles can be reconceptualised, reinforced and rethought in an age of complex power relationships – state, corporate, individual and cultural power – and global communications.

Conclusion [2.120] This chapter has sought to demonstrate that freedom of speech is a complex concept with a long and rich history. Its continual regeneration is the product of particular combinations of political, legal, cultural and philosophical conditions. While free speech arguments underpin much regulation of the media, the particularities too often remain unexplored. If democracy and liberty are to be seriously pursued and protected by the law – and by the media – it is essential to consider in depth the contingent and contestable nature of free speech, subjecting it to scrutiny whenever it appears.

132 133 134

I Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (2009); N Strossen, “The regulation of extremist speech in the era of mass digital communications: Is Brandenburg tolerance obsolete in the terrorist era?” (2008-09) 36 Pepperdine Law Review 361. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 15. Schauer in Sadurski and Campbell (eds), Freedom of Communication (1994), p 15. M Price, Free Expression, Globalism and the New Strategic Communication (Cambridge University Press, 2015).

[2.120] 29

Australian Media Law

There are, however, places that the legal regulation of speech cannot – and should not – reach. What is meant by free speech in a political sense in Australia is becoming increasingly visible as an expression of power, be it state, private or cultural power. If our liberal, or Enlightenment, or post-Enlightenment or postmodern search is for autonomy, truth or democracy, or – in one form or another – a pursuit of the good life, then it may be useful to consider the extent to which power is mediated through the malleable, yet almost axiomatically legitimate discourse of free speech. To ask difficult questions about the use and abuse of free speech principles is not in any way to lessen a commitment to speech or liberty. To ask these types of questions is, in Peter Murphy’s words, to make our judgments “less black and white, more subtle, more rich, more attentive to and ready to take account of fundamental values different from those to which our primary allegiance is given”. 135 It is to challenge the roles of the law and the media in the pursuit of liberty and to examine more closely just what “liberty” might mean.

135

Murphy (1991) 30 Thesis Eleven 117 at 123.

30 [2.120]

Defamation

3

[3.10] INTRODUCTION ........................................................................................ 33 [3.20] CIVIL DEFAMATION ................................................................................... 33 [3.20] The Australian context ............................................................................... 33 [3.20] [3.30] [3.40]

Reputation, truth and falsity ................................................ Uniform defamation laws .................................................... Applicable law ..................................................................... [3.70] Libel and slander ........................................................................................

33 34 36 37

[3.80] DEFAMATORY MATTER .............................................................................. 38 [3.80] Interpreting the imputations .................................................................... 38 [3.90] [3.100] [3.130]

[3.140]

Natural and ordinary meaning ............................................ 38 False innuendo .................................................................... 39 True innuendo ..................................................................... 41 Defamatory meaning .............................................................................. 42 [3.140] Test ..................................................................................... 42 [3.170] Relevant standard ................................................................ 43 [3.200] Statements made in jest ...................................................... 46 [3.210] Vulgar abuse ....................................................................... 47 [3.220] Context ............................................................................... 47 [3.240] Bane and antidote ............................................................... 49 Intention and motive .............................................................................. 52 Judge and jury .......................................................................................... 52 Single cause of action ............................................................................. 54

[3.290] [3.300] [3.310] [3.320] REASONABLY REFERABLE TO THE PLAINTIFF ........................................ 54 [3.320] Test ............................................................................................................ 54 [3.350] Time of reference ..................................................................................... 56 [3.380] Intention ................................................................................................... 57 [3.410] Defamation of a group ............................................................................ 58 [3.440] PUBLICATION ........................................................................................... 59 [3.450] Republication ........................................................................................... 60 [3.480] Place of publication ................................................................................. 62 [3.490] PARTIES ..................................................................................................... 62 [3.490] Who may sue ........................................................................................... 62 [3.490] [3.500] [3.510] [3.520] [3.530] [3.540]

Living persons ..................................................................... Bankrupts ............................................................................ Partnerships ........................................................................ Corporations ....................................................................... Trade unions and unincorporated associations .................... Elected bodies ..................................................................... [3.550] Who may be liable ................................................................................... [3.550] Living persons ..................................................................... [3.560] Contribution to publication .................................................

62 63 63 63 64 64 65 65 65

[3.570] RESOLUTION OF DISPUTES WITHOUT LITIGATION ............................ 68 [3.570] Introduction ............................................................................................. 68 [3.580] Offer to make amends ............................................................................ 69 31

Australian Media Law

[3.630] Apologies .................................................................................................. [3.640] DEFENCES ................................................................................................ [3.640] Introduction ............................................................................................. [3.650] Justification ...............................................................................................

74

74 74 74 [3.660] Motive ................................................................................ 75 [3.670] All imputations to be justified .............................................. 75 [3.680] Publications containing both fact and opinion ..................... 77 [3.690] The Polly Peck defence ........................................................ 77 [3.710] Contextual truth ...................................................................................... 81 [3.720] Absolute privilege .................................................................................... 83 [3.730] Proceedings of parliamentary bodies ................................... 84 [3.740] Proceedings of courts or tribunals ....................................... 87 [3.750] Internal executive communications ..................................... 89 [3.760] Communications between spouses ...................................... 90 [3.770] Whistleblowers .................................................................... 90 [3.780] Qualified privilege .................................................................................... 90 [3.790] Publication of public documents ......................................... 90 [3.800] Fair report of proceedings of public concern ....................... 91 [3.860] Common law qualified privilege: interest or legal, moral or social duty and reciprocal interest ......................... 96 [3.970] Extension of qualified privilege in cases of political communication .................................................... 103 [3.1020] Common law public interest privilege after Reynolds and Jameel ........................................................................ 110 [3.1050] Statutory qualified privilege for provision of information .... 113 [3.1100] The relationship between the uniform defamation legislation and the extended common law qualified privilege ............................................................................ 117 [3.1110] Honest opinion and fair comment ..................................................... 118 [3.1120] Fair comment .................................................................... 119 [3.1180] Honest opinion ................................................................. 125 [3.1230] Relationship between fair comment and honest opinion .... 127 [3.1240] Relationship between fair comment/honest opinion, justification and privilege ................................................... 127 [3.1250] Innocent dissemination ....................................................................... 128 [3.1280] Triviality ................................................................................................ 130 [3.1290] Consent ................................................................................................ 132

[3.1320] REMEDIES ............................................................................................. 133 [3.1320] Damages .............................................................................................. 133 [3.1320] [3.1330] [3.1340] [3.1350] [3.1360]

Purpose of damages .......................................................... Calculation of damages ..................................................... Aggravated damages ........................................................ Exemplary or punitive damages ......................................... Mitigation ......................................................................... [3.1370] Injunction ............................................................................................. [3.1380] Costs in proceedings ........................................................................... [3.1390] Mediation or other alternative dispute resolution ...........................

133 134 135 136 136 138 141 141

[3.1400] OTHER CAUSES OF ACTION .............................................................. 142 [3.1410] Misleading or deceptive conduct ...................................................... 142 [3.1410] 32

Cause of action ................................................................. 142

Chapter 3 – Defamation [3.1420]

Exemption ......................................................................... 143 146

[3.1460] Injurious falsehood .............................................................................. [3.1470] CRIMINAL DEFAMATION .................................................................... [3.1470] Common law offence ......................................................................... [3.1480] Statutory modifications and additions to the common law intent or knowledge ......................................................................... [3.1490] [3.1500] [3.1510] [3.1520] [3.1530] [3.1540] [3.1550]

Publication ........................................................................ Slander .............................................................................. Defamation of the dead .................................................... Defences ........................................................................... Defences for publishers ..................................................... Penalties ............................................................................ Private prosecutions ..........................................................

148 148 149 150 150 151 151 151 152 152

Introduction [3.10] Defamation occurs where one person communicates, by words, photographs, video, illustrations or other means, material which has the effect or tendency of damaging the reputation of another. It involves the publication of matter which is deemed to be defamatory and which is reasonably referable to the plaintiff. The object of the law of defamation is to strike a balance between the protection of reputation and the promotion of freedom of speech. In this connection, freedom of speech and the facilitation of the public’s interest in a free flow of information and in the discovery of the truth are effected by a variety of defences to the action for defamation. The main focus of this chapter is an examination of civil liability for defamation. In addition, this chapter examines the interface between defamation and two associated topics: prohibition of misleading and deceptive conduct under consumer protection legislation 1 and the tort of injurious falsehood, which concerns false statements made concerning the property, goods or services of a person. 2 In certain circumstances there may also be criminal liability for defamation. This chapter concludes with a discussion of this liability. 3

Civil defamation The Australian context Reputation, truth and falsity [3.20] Contrary to what may be popularly thought, in Australia there is no necessary connection between reputation and truth. 4 The reason for this is that the opinions which collectively constitute a person’s reputation may or may not reflect the plaintiff’s real character 1 2

See [3.1410]-[3.1450]. See [3.1460].

3 4

See [3.1470]-[3.1550]. See Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 551 per Hunt J.

[3.20] 33

Australian Media Law

and may indeed be based upon matter which is true or untrue. 5 A successful action for defamation does not require that the plaintiff prove that the publication is false. 6 The truth or falsity of the published matter is only relevant if a party puts it in issue. 7 The plaintiff might raise falsity as a matter which aggravates damages. 8 Alternatively, a defendant can raise truth by pleading justification as a defence 9

Uniform defamation laws [3.30] Australia adopted uniform laws of defamation in 2006. 10 Prior to that time defamation in Australia was a morass of differing regimes among the States and Territories. The laws were codified in Queensland and Tasmania, Victoria and South Australia applied the common law, New South Wales relied upon the common law for the cause of action and statute for its defences and the other jurisdictions utilised a mixture of the common law and statute for their regimes. There were in effect eight regimes in the eight jurisdictions. Such a situation was extremely problematic in an age of national media. There was also widespread concern that traditional curial resolution of defamation claims was an avenue largely available only to those who could afford it and, since it occurred months or even years after the publication of the defamatory matter when memories of the publication may have faded, was an ineffective means of vindicating reputation. Reform was on the agenda of the Standing Committee of Attorneys-General for well over 20 years without resolution. 11 That did not stop individual jurisdictions introducing reforms, typically to achieve the same objectives, viz: to not only ensure unreasonable limits were not placed on publications and discussions of matters of public interest but to provide effective and appropriate remedies while promoting speedy and non-litigious methods of resolving disputes and avoiding 5

New South Wales Law Reform Commission, Defamation, Report No 75 (1995), p 18.

6

In a 1996 Bill to reform defamation in New South Wales, proof of falsity was to be an essential ingredient of the cause of the action. The Bill was allowed to lapse after lobbying by interested parties. Age Co Ltd v Elliott (2006) 14 VR 375 at [16]. See [3.1340].

7 8 9 10

11

See [3.650]. See Civil Laws (Wrongs) Act 2002 (ACT), Ch 9; Defamation Act 2005 (NSW); Defamation Act (NT); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). Strictly speaking, it is more accurate to describe the current position as “almost uniform”. Some differences between the jurisdictions remain. Perhaps the most significant relates to whether the option to have the trial heard by jury is available (see further [3.80]). Despite these differences, the term “uniform defamation legislation” is used throughout this chapter. Specific section numbering used by the majority of jurisdictions will be referred to as the “uniform defamation legislation” or “DA” sections. Where different section numbering is used (in the Northern Territory due to the removal of provisions concerning juries and a consequential renumbering of the sections and in ACT due to defamation laws being included in a more general statute concerning civil wrongs), this will be noted. It seems that an enduring point of disagreement which prevented the adoption of uniform laws was the defence of justification: four jurisdictions (Victoria, South Australia, Western Australia and the Northern Territory) applied the common law meaning of truth alone whilst four jurisdictions required truth and public benefit (Queensland, Tasmania and the Australian Capital Territory) or truth and public interest (New South Wales). Critics of the latter approach saw it as de facto protection for personal privacy (see [8.450]) which, if considered desirable, should have been addressed head-on.

34 [3.30]

Chapter 3 – Defamation

protracted litigation. 12 Reforms were implemented in New South Wales and the Australian Capital Territory, which, inter alia introduced the provision of a pre-trial settlement process based on the publisher making an offer to make amends. Matters changed in 2005 when Philip Ruddock was appointed Attorney-General of the Commonwealth. He proposed addressing the impasse in SCAG by enacting federal defamation legislation, relying upon inter alia the Commonwealth’s constitutional power to make laws concerning broadcasting. Draft laws were promulgated, which sought to resolve points of dispute between the States and Territories but also introduced new features, such as an attempt to define with precision what qualified as “defamatory”, and allowing actions for the publication of defamatory material concerning dead persons. 13 Naturally, since not all defamation relates to national or interstate media publications, the effect of such legislation would have added a ninth regime to the Australian landscape. Not long after, and before the Commonwealth acted, SCAG agreed upon a uniform regime which has now been enacted in all jurisdictions. 14 The uniform regime adopts a similar approach to that previously followed in New South Wales by relying on the common law for the laws relevant to establishing the cause of action whilst providing for statutory defences. 15 In addition, common law defences have been expressly preserved. 16 Since the common law governs the cause of action and some defences, Australian courts may continue to make reference to English case authorities in appropriate cases. However, the law in the United Kingdom has now changed significantly with the enactment of the Defamation Act 2013 (UK). This statute imposes a threshold requirement that a statement will not be regarded as defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. This statute also, inter alia, enacts new defences of truth, 17 honest opinion 18 and publication on matter of public interest 19 whilst repealing the common law defences of justification, fair comment and the Reynolds defence. 20 In a reflection of modern times, there are new provisions concerning actions the defamation against operators of websites, 21 and a new form of privilege recognised for statements made in peer-reviewed scientific or academic journals. 12 13

15

Cf, for example, Defamation Act 1974 (NSW), s 3. Attorney-General’s Department, Revised Outline of a Possible National Defamation Law (July 2004), pp 10-13. Subsequently the Tasmanian Government contemplated a break from the uniform regime by amending its statute to once again allow corporations with more than 10 employees to sue for defamation (see [3.520]). This would have enabled companies in the timber industry to take action against those opposing their operations. However, these plans were abandoned in the face of concerns over plaintiffs forum shopping, with corporate plaintiffs seeking to file suits in Tasmanian courts, and a lack of support from the other States and Territories: see “Tasmania ditches defamation law change after public backlash” ABC News 5 February 2015 http://www.abc.net.au/news/2015-02-05/tasmania-ditches-defamation-law-changes-after-public-backlash/ 6071438 DA: s 6; ACT: s 118; NT: s 5.

16

DA: s 24; ACT: s 134; NT: s 21; SA: s 22.

17

See [3.630].

18

See [3.1180].

19 20

See [3.1040]. See [3.1040].

21

See [3.560].

14

[3.30] 35

Australian Media Law

Applicable law [3.40] The tort of defamation is committed not when the publication is made but rather when and where it is received because that is where the damage to reputation occurs. 22 The difficulties created by the previous inconsistencies in the law were accentuated by the rule that, while the plaintiff was entitled to recover in respect of damage to reputation for the entire publication, including publications in different jurisdictions subject to different laws, only one action could be brought. 23 Moreover, a consequence could be that exactly the same matter published simultaneously in more than one jurisdiction could be the basis for recovery of damages in one or more but not in another or other jurisdictions. 24 This led to plaintiffs “forum shopping”, that is, commencing their actions in the jurisdiction with laws most favourable to their claims. This has now been addressed by the uniform laws, which provide that if there is a multiple publication of matter in more than one jurisdiction the substantive law applicable in the jurisdiction “with which the harm occasioned by the publication as a whole has its closest connection” must be applied in that jurisdiction to determine each cause of action. In order to decide which jurisdiction constitutes that which has the closest connection with the harm occasioned, the following factors are taken into account: • the place at the time of publication where the plaintiff was ordinarily resident, or in the case of a corporation 25 the place where it has its principal place of business at that time; • the extent of publication in each relevant jurisdiction; • the extent of harm sustained by the plaintiff in each jurisdiction; and, • any other matter considered relevant. 26 The provision is based on the notion that there are no longer different defamation laws in the different Australian jurisdictions. 27 This choice of law provision would apply equally to publications on the internet which are read in different Australian jurisdictions. The internet knows no boundaries and has the capacity to reach easily and quickly an Australia-wide, and indeed worldwide, audience.

22

23

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 at [44]. Thus it is insufficient for the evidence to show that the defamatory matter was posted on a website – there must be evidence that the matter was downloaded: see, for example, Bleyer v Google Inc LLC (2014) 311 ALR 529 (NSWSC). Maple v David Syme & Co Ltd [1975] 1 NSWLR 97; Meckiff v Simpson [1968] VR 62.

24 25

Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 196. See [3.520].

26 27

DA: s 11(3); ACT: s 123(3); NT: s 10(3). See, however, S Rares, “Defamation and media law update 2006: Uniform national laws and the Federal Court of Australia” (2006) 28 ABR 1.

36 [3.40]

Chapter 3 – Defamation

Example

Dow Jones & Company Inc v Gutnick [3.50] Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 The defendant operated a news subscription service on the World Wide Web. Material for the service was uploaded onto computer servers in New Jersey. Material, which the plaintiff claimed to be defamatory of him, was then downloaded in Victoria. The plaintiff commenced proceedings in Victoria. The defendant sought to strike out the action on the grounds that Australian law should, like that applied in the United States, 28 recognise that in the case of the internet, the relevant publication was when the material was first made available by being uploaded in New Jersey. New Jersey defamation laws were more favourable to defendants than the laws of Victoria. The High Court held that the general rule was that defamation occurs at the place where the material is made available in comprehensive form. In the case of the internet this occurred when material was downloaded and read via a web browser. It was in the place where the material was downloaded that any damage to reputation may occur. The action was therefore validly commenced in Victoria.

[3.60] Although the decision is a logical one when viewed from basic principles, 29 its implications for the use of the internet are potentially far-reaching. In effect, any person in the world who places material on the internet which may be viewed in Australia, does so subject to not only the local laws of the jurisdiction in which he or she is in, but also the potentially different uniform defamation regime in Australia. Similarly material uploaded in Australia that complies with Australian law might still fall foul of different laws in a foreign country. This will be particularly significant where the foreign laws are more advantageous to a plaintiff identified in the publication than Australian law.

Libel and slander [3.70] The common law recognises two forms of defamation: libel and slander. The difference between the two forms depends upon the manner in which the defamatory matter is expressed or conveyed. “Libel” describes defamatory matter in permanent form, such as writing or pictures while “slander” describes defamatory matter in transient form, such as the spoken word. 30 The significance of the distinction is that in a libel action the plaintiff does not have to prove that he or she has suffered damage, whereas he or she must do so in an action for slander, unless the case falls within one of the exceptions in which slander is actionable 28

See, for example, Firth v State of New York 775 NE 2d 463 (NY 2002) (“one publication” rule – only first posting of defamatory matter upon an internet site is actionable).

29

A similar approach is taken in the UK: see Loutchansky v Times Newspapers Ltd (No 2) [2002] QB 783 (CA) (leave to appeal to House of Lords refused [2002] 1 WLR 1552). Monson v Tussauds Ltd [1894] 1 QB 671 at 692 per Lobes LJ; Wainer v Rippon [1980] VR 129 at 134.

30

[3.70] 37

Australian Media Law

per se. 31 The distinction between libel and slander has been abolished by the uniform defamation legislation. 32 Accordingly, all defamatory publications, whether in permanent or transient form are actionable without proof of actual damage.

Defamatory matter Interpreting the imputations [3.80] The first step in the defamation equation is to identify the distinct imputations or messages that are conveyed by the publication. This question is judged from the perspective of an ordinary, reasonable member of the community who sees, hears or reads the publication. Such a person is taken to be of fair, average intelligence, and as being “neither perverse, nor morbid or suspicious of mind, nor avid for scandal”. This viewer, listener or reader does not live in an ivory tower. 33 With this in mind, there are three ways in which a plaintiff may show that a publication conveys an imputation: the natural and ordinary meaning and the so-called “false” and “true” innuendoes.

Natural and ordinary meaning [3.90] The natural and ordinary meaning of material embraces its literal meaning, that is the meaning that an ordinary person would assign to the material aided only by general knowledge. 34 Accordingly, a publication that alleges that a businessman cheats his customers conveys an imputation in its literal meaning. When the natural and ordinary meaning of the words is clear it is generally unnecessary for the plaintiff to plead the meaning that is relied upon. 35

31

That is, where the publication imputes that the plaintiff is guilty of, or has been convicted, of a crime punishable by imprisonment, disparages the plaintiff in his or her office, profession, calling, trade or business; imputes that the plaintiff has a venereal disease; or imputes unchastity or lesbianism in a female plaintiff: see RP Balkin and JLR Davis, Law of Torts (3rd ed, 2002), pp 552-554.

32 33

DA: s 7; ACT: s 119; NT: s 6. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12]; Farquhar v Bottom [1980] 2 NSWLR 380 at 385.

34 35

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 1370 (WLR). Prichard v Krantz (1984) 37 SASR 379 at 384.

38 [3.80]

Chapter 3 – Defamation

“False” innuendo [3.100] The natural and ordinary meaning of words also embraces an inferred or indirect meaning which an ordinary, reasonable person would draw from the material. 36 This “false” innuendo is a meaning which, though not expressed in the material, may be inferred or implied 37 by an ordinary person “reading between the lines in light of his or her general knowledge and experience”. 38 Example

Random House Australia Pty Ltd v Abbott [3.110] Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 A book published by the defendant contained a statement that two prominent Liberal politicians were members of the Right Wing of the Labor Party while at university until they both had sexual liaisons with the same woman, who later became the wife of one of them, and who inducted them into the Liberal Party. The Full Court of the Federal Court held that the natural and ordinary meaning of the publication conveyed by implication or inference several imputations about both the men and their wives. These included, in relation to the men, that their political commitment was so shallow that they would abandon an allegiance on the basis of a sexual liaison. In relation to the women, there was an inference of not only pre-marital sex but also a willingness to exploit a sexual liaison. There was, in addition, an imputation conveyed that one of them was a “political manipulator” by using sex to recruit party members.

[3.120] It has been recognised that some words do not have the precise meaning and that ordinary men and women may have different perceptions of the words used. 39 The ordinary, reasonable reader/listener/viewer is a lay person not a lawyer and his or her capacity for drawing implications is greater than that of a lawyer (the lawyer being restricted to accepted legal definitions only). 40 As the High Court has observed: “An article which gives otherwise 36

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 1370 (WLR). For this reason false innuendo is sometimes merely treated as an aspect of the natural and ordinary meaning rather than as a separate category of imputation.

37

An “implication” is something which the reader/listener/viewer understands the publisher as having intended to say, while an “inference” is something the reader/listener/viewer adds to what is stated by the publisher: it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but is nevertheless a conclusion drawn by the reader/listener/viewer: see Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167 per Hunt CJ in CL. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412. They are described as “false” because they do not in fact depend upon the reader/listener/viewer knowing particular extrinsic facts, as required for “true” innuendoes: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579 per Kirby J. Lewis v Daily Telegraph Ltd [1964] AC 234 at 258-259. Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245.

38

39 40

[3.120] 39

Australian Media Law

irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.” 41 Thus, for example, in a case where a plaintiff was referred to as a “murder suspect” it was held that the noun “suspect” was not a word of precise meaning and was capable of conveying a number of meanings according to its context. These include suspicion on grounds ranging from mere gossip through a belief on slight or insufficient proof or evidence to a belief reasonably or strongly grounded on evidence. Accordingly, the word “suspect” is capable of a range of interpretations. It is then a question of fact whether in the circumstances it necessarily conveys a particular meaning. Accordingly a court should not strike out “believed on reasonable grounds to have murdered” as a possible interpretation of “murder suspect” since that would be equivalent to applying a lawyer’s sense of discernment rather than that of an ordinary, reasonable man or woman. 42 It has also been held by the New South Wales Court of Appeal that the “walk in” technique may support an imputation which otherwise would not be conveyed since it may give the implication that the target has been accused or “caught in the act” of some indiscretion. 43 This could be reinforced by reference to the story as the culmination of successful investigative journalism. 44 However, the publisher is not held responsible where an inference is drawn from an inference, that is when the reader/listener/viewer draws an inference which is available and then uses that inference as a basis (at least in part) from which a further inference is drawn. It is considered unreasonable to hold the publisher liable for other than the first inference drawn. 45 For example, where a plaintiff is reported as having been charged with an offence (and no more), a first inference available from the statement (for which the publisher is held responsible) would be that police believed the plaintiff to be guilty or had grounds for charging the plaintiff. A second inference, which is based at least in part upon the first inference (and for which the publisher is not held responsible) would be that the plaintiff is in fact guilty of the offence charged. 46 Normally, a plaintiff need not specify any false innuendoes if the meaning is clear. However, where the plaintiff pleads that the published material has a particular meaning, it seems that he or she will be bound by the meanings so alleged. The plaintiff will only be able to depart from those pleaded meanings if such a departure will not prejudice, embarrass or unfairly disadvantage the defendant. Departure normally would not be permitted if the unpleaded meaning is substantially different from that pleaded. Where the words are incapable of bearing the pleaded meanings and departure from those pleadings would prejudice, 41 42 43

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [14]. Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998).

44 45

TCN Channel Nine Pty Ltd v Antoniadis (unreported, 1 October 1998). Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166. See also the discussion in A Kenyon, Defamation: Comparative Law and Practice (2006), pp 39-42.

46

40 [3.120]

Chapter 3 – Defamation

embarrass or unfairly disadvantage the defendant, the plaintiff will be unable to fall back on the natural and ordinary meaning of the words. 47

“True” innuendo [3.130] Material may also be considered defamatory when considered in the context of extrinsic facts known only to some people. In this case, the “true” innuendo may colour an otherwise apparently entirely innocent statement: the published material itself is incapable of giving rise to a defamatory meaning but does so when considered in conjunction with the extrinsic facts. 48 Accordingly, it might be said that to say of a man that he was seen entering a brothel may impute that he is a frequenter of brothels on an ordinary and natural meaning of the words and therefore be defamatory. By contrast to say of a man that he was seen entering premises identified only by the address could convey the same imputation by way of true innuendo when that statement is published to persons who know that the premises at that address were a brothel. 49 Where a slang expression is not within the understanding of the general community, so as to be conveyed by the natural and ordinary meaning of the words, its meaning to those who know it will need to be pleaded as true innuendo. 50 Where a statement is alleged to be defamatory according to the attitude of a section of the community, such as a particular religious or ethnic group, then it is necessary to plead that sectional attitude as an extrinsic fact or circumstance. 51 The plaintiff need only show that the additional facts were known to one or more persons who also encountered the defamatory material. 52 It is not necessary for the plaintiff to demonstrate that those persons understood the words in a defamatory sense or believed the imputation. 53 The additional facts must be extrinsic in the sense that they are independent of the reported material. Where the facts said to colour the otherwise innocent statements appear in other parts of the same publication, the issue will be one of the natural and ordinary meaning of the publication rather than true innuendo. 54

47 48 49

50

51 52 53 54

Prichard v Krantz (1984) 37 SASR 379 at 386; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 534 per Brennan CJ and McHugh J. Mawe v Pigott (1869) Ir 4 CL 54 at 59. Lewis v Daily Telegraph Ltd [1964] AC 234 at 278. Cf Kirby J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 579 altered this example to a plaintiff visiting an address known by others to be a “place of criminal activity”, perhaps in recognition of the legalisation of brothels in some jurisdictions. See, for example, O’Malley v Elder (1876) 2 VLR (L) 39 (“bogtrotter”); Fayn v Thompson Properties Pty Ltd (1991) 7 BR 144 at 146 per Hunt J (“mahulla”). It is for the judge to decide whether the meaning of the word would be understood by the general community. Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544. See, for example, Cornes v Ten Group Pty Ltd [2011] SASC 104 at [94]. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [51]; Hough v London Express Newspaper Ltd [1940] 2 KB 507. Butler v John Fairfax Group Pty Ltd (unreported, New South Wales Supreme Court, Levine J, 25 May 1994).

[3.130] 41

Australian Media Law

Defamatory meaning Test [3.140] Once the distinct imputations are identified, the next question will be whether they carry a defamatory meaning. In Radio 2UE Pty Ltd v Chesterton 55 the High Court held that the relevant test was whether the published matter would be likely to lead others to think less of the plaintiff, 56 which has also been expressed as whether it has the tendency to lower the plaintiff in the estimation of others. 57 This test was preferred over other alternative tests that have been previously recognised, namely whether the published matter was likely to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule, 58 or would tend to cause the plaintiff to be shunned or avoided. 59 The High Court thought that the first of these was too narrow, and that the second operated more as an exception to the requirement that there be damage to the plaintiff’s reputation. 60 Accordingly, cases that might have previously satisfied either of these tests now need to be considered in terms of whether the plaintiff’s reputation has been damaged. For example, to impute that a person was insane was previously held to be defamatory on the ground that it may induce others to shun or avoid the plaintiff, 61 although it need not make others think less of the plaintiff. Similarly, defamatory matter may subject a person to ridicule, even though it does not lower them in the estimation of others. 62 The High Court in Radio 2UE Pty Ltd v Chesterton also recognised that “disparagement of reputation” is “the essence of an action for defamation”. 63 It is necessary, therefore, for the imputation to disparage the plaintiff, that is to impute moral blame to the plaintiff. 64

55 56

57 58

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5], [60], citing Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-639; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 per Gaudron and Gummow JJ; and John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 351 per Callinan and Heydon JJ. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [4], citing Sim v Stretch (1936) 52 TLR 669 at 671. Parmiter v Coupland (1840) 6 M & W 105 at 108; 151 ER 340 at 342; Brander v Ryan (2000) 78 SASR 234 at 245.

59

See, for example, Morgan v Lingen (1863) 8 LT 800 (imputing that the plaintiff was insane); Henry v TVW Enterprises [1990] WAR 475 (imputing that the plaintiff had hepatitis B); cf Dawson Bloodstock Agency v Mirror Newspapers Ltd [1979] 1 NSWLR 16.

60 61 62

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [4]. As in Morgan v Lingen (1863) 8 LT 800. See, for example, Ettingshausen v Australian Consolidated Press (unreported, NSW Supreme Court, Hunt J, 25 June 1991) (photograph of plaintiff showing his genitals capable of subjecting the entirely blameless plaintiff to more than a trivial degree of ridicule and therefore defamatory). See also McDonald v North Queensland Newspaper Co Ltd [1997] 1 Qd R 62; Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [32]. Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1.

63 64

42 [3.140]

Chapter 3 – Defamation

Example

Boyd v Mirror Newspapers Ltd [3.150] Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 The defendant newspaper published an article that suggested that the plaintiff, a rugby league footballer, had waddled onto the football field, that he was overweight mainly due to injury, and that he had lost his pace and step. The plaintiff alleged that the article gave rise to three imputations: (1) that he was so fat and slow that he could not properly play in his position in first grade rugby league football; (2) that he was so fat as to appear ridiculous on the field; and (3) that he had so let his condition to degenerate that he was a hopeless player. It was held that imputation (3) was capable of being defamatory because it lowered the plaintiff in the estimation of reasonable members of society by according blame to the plaintiff for his condition. By contrast, while imputation (1) may also have lowered him in the estimation of others it was not capable of being defamatory since it contained no suggestion of blame on the plaintiff’s part and therefore was not disparaging.

[3.160] By contrast, the common law did not require disparagement in cases where the matter was likely to induce the plaintiff to be shunned or avoided, or where the plaintiff was held up for ridicule, 65 (as in the case of imputation (2) in Boyd v Mirror Newspapers Ltd). The High Court’s preference for a test of whether the published matter would be likely to lead others to think less of the plaintiff may mean that published matter that ridicules the plaintiff now may not be considered defamatory unless it disparages the plaintiff’s reputation. Published matter will not be judged to be defamatory if it merely embarrasses or hurts the plaintiff’s feelings. 66 However, if the publication damages the plaintiff’s reputation any damages awarded may include a component on account of the injury to the plaintiff’s feelings. 67

Relevant standard Ordinary, reasonable people [3.170] The question whether people would be likely to think less of the plaintiff is adjudged by reference to the standard of the hypothetical referee, namely “ordinary, reasonable people.” 68 Such people are “ordinary, decent folk” in the community 69 who are of ordinary intelligence, experience and education, fair-minded and not avid for scandal. They are 65

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453.

66

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452; Australian Broadcasting Corporation v Reading [2004] NSWCA 411 at [184].

67 68

See [3.1320]. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] citing Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at 1719-1720 per Gleeson CJ, McHugh, Gummow and Heydon JJ; Nevill v Fine Art & General

[3.170] 43

Australian Media Law

expected to bring to the matter in question their general knowledge and experience of worldly affairs 70 and of standards held by the general community. 71 Those standards include but are not limited to those of a moral or ethical kind. The standards of the community may change as society changes. For example, while it was once defamatory to say of a woman that she had been raped 72 such an imputation today would not be regarded as damaging the woman’s reputation. An issue of greater currency is whether there has been sufficient change in the community’s social and moral values that an imputation that a man is a homosexual or has participated in homosexual sex is not defamatory on account of that fact alone. There has been authority that has held that such an imputation alone is no longer defamatory, although it might still give rise to a defamatory imputation such as hypocrisy, an abuse of a position of power or trust, or infidelity in the context of the publication or by way of true innuendo. 73 There have also been decisions to the contrary. 74

Sectional attitudes [3.180] The defamatory nature of an imputation is generally ascertained by reference to general community standards and not sectional attitudes. 75 This view has been relied upon to support a conclusion that a statement identifying the plaintiff as a police informer is incapable of being defamatory because such a statement would only be viewed with disfavour by a minority, that is, criminal classes, and should indeed raise the plaintiff’s character in the estimation of “ordinary, reasonable persons”. 76 One difficulty with such a conclusion is that it replaces a test that refers to current general community standards – no matter how prejudiced – with a one that refers to a particular perception of what those standards should be. 77 Insurance Co Ltd [1897] AC 68 at 72 per Lord Halsbury LC. In Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [5] the High Court eschewed as ambiguous the expression “right thinking members of the community”. See also Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54]. 69 70

John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at 309 per Callinan and Heydon JJ. Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [6], [60]; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at 1719-1720; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [54].

71 72 73

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [60]. Youssoupoff v MGM (1934) 50 TLR 581. Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 at [30]. See also Quilty v Windsor (1999) SLT 346. Rivkin has been criticised as being without sound foundation in L McNamara, “Bigotry, community and the (in)visibility of moral exclusion: Homosexuality and the capacity to defame” (2001) 6 Media & Arts Law Review 271. Horner v Goulburn City Council (unreported, NSW Supreme Court, Levine J, 5 December 1998); Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 at [40]. See also Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998).

74

75

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507. This concept is different, however, from the notion of “true innuendo” whereby a statement may be defamatory even though only a few people are possessed with knowledge of certain particular facts which place the material published in a defamatory light.

76

Mawe v Pigott (1869) Ir 4 CL 54 at 62; Byrne v Deane [1937] 1 KB 818 at 832-833, 840-841. This position might be contrasted with a situation where the ordinary, reasonable people belong to a sectional group, perhaps based on religion or ethnicity: see, for example, Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536.

77

See Fleming (9th ed, 1998), p 583; GL Fricke, “The criterion of defamation” (1958) 32 ALJ 7 at 12-13.

44 [3.180]

Chapter 3 – Defamation

While it may be correct to say that an imputation is not defamatory if it would damage a person’s reputation among only a small or disreputable minority, if the views of that minority do not reflect those of the general community, there is authority for the view that it is sufficient if the matter is defamatory in the estimation of an “appreciable and reputable” or “substantial” section of the community since such view may reflect the standards of “ordinary, reasonable members of society.” 78 An example is disapproval of certain practices by particular religious or ethnic groups which are not the subject of disapproval by the general community apart from those groups. 79 Thus, it may be defamatory to say of a person that he or she performs legal abortions since a large part of the community would regard the performance of even a legal abortion to be morally wrong. 80

Nature of medium [3.190] When applying the standard of ordinary, reasonable persons, the judge must take into account the degree of analytical attention with which the material may be expected to have been received, and the degree of accuracy that the recipient may have expected of the material. For example, if the material is published in a book, an ordinary reasonable person would be likely both to expect that care had been taken by the author and to read the material with a high degree of attention. 81 A reader of written material may be expected to consider or re-read the document at leisure or to check something which has gone before to ensure that his or her understanding is correct and in doing so to change any mistaken first impression of the message being conveyed. 82 By contrast, in the case of broadcasts by the electronic media, where the publication is often a fleeting episode and the viewer/listener has no opportunity to hear the words again or to read and study them, it has been acknowledged that the ordinary reasonable person is less likely concerned with the precise words used (including, perhaps, the significance of the existence earlier in the programme of a qualification of a statement made later in the published material) and more concerned with the overall impression gained. 83 As Kirby J has observed in the High Court, in a society increasingly used to the immediacy of “channel surfing” with remote controls and accessing the internet, publishers must take special care with prominently published material, including headlines, captions, photographs, pictures and their digital equivalents. 84 In the case of sensational publications, the ordinary reader/listener/ viewer is regarded as prone to some loose thinking, sometimes making it easier to show that 78 79

80 81 82 83 84

See, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 694 (“appreciable and reputable”); Grundmann v Georgeson (1996) Aust Torts Reports 81-396 at 63,503 (“substantial”). Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544. In such a case it would be necessary to plead the sectional attitude as an extrinsic fact and the case will then proceed on the basis that the publication was only to members of the particular group: see [3.130]. See, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Grundmann v Georgeson (1996) Aust Torts Reports 81-396. Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166. See, for example, Gorton v Australian Broadcasting Commission (1973) 22 FLR 181 at 187; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 575.

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the publication is capable of conveying a defamatory imputation. 85 By the same token, there may also be circumstances in which it is more difficult for a plaintiff to show a defamatory meaning was conveyed on the basis of the recipient’s casual attention.

Statements made in jest [3.200] Merely because matter is published in jest does not prevent cartoons, caricatures, jokes or satire from being subject to the laws of defamation. It is the interpretation of the ordinary reader/listener/viewer and not the intention of the publisher that is relevant. If that person would interpret the publication as mere jest, there is no cause of action. 86 However, if the publication holds its subject up to ridicule and thereby damages a plaintiff’s reputation (as often is the case) 87 or where attempted humour promotes an underlying assumption of alleged truth which may be considered defamatory, 88 then the defendant cannot claim that the publication was no more than comic nonsense. The fact that there are few actions against the publishers of cartoons, caricatures, jokes or satire may be for a number of reasons. For example, if due account is given to the context of the publication, and the material is understood by reasonable readers or viewers as being no more than a joke, and bound to traffic in exaggeration, caricature, allegory and fiction, the material is unlikely to injure the plaintiff in his or her reputation. 89 Alternatively, the publisher may have an available defence, such as honest opinion. 90 In addition, there may be other factors that influence the subject of the cartoon, caricature, joke or satire to not take action. For instance, politicians who take action over cartoons or jokes are not likely to project to their constituencies the kind of image of themselves that they might prefer.

85 86

Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd (1995) Aust Torts Reports 81-364 at 62,717 (WA FC); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165. Donoghue v Hayes (1831) Exch 265 at 266.

87

For an example of a plaintiff alleging that it was defamed by a cartoon, see: Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reps 80-002.

88

Donoghue v Hayes (1831) Exch 265 at 266; Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at 28-29 (FC) (radio skit suggesting nearby businessman was a drug dealer); Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 (panel show in which comedian guest panellist suggested a footballer had had sex with the plaintiff, who was married to another man). Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667; Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 at 67,476. See, for example, Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002.

89 90

46 [3.200]

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Vulgar abuse [3.210] Words which are merely spoken by way of vulgar abuse or vituperation, and which are understood as such by those who heard them, may not be capable of conveying any defamatory imputation. 91 However, there is no dichotomy between vulgar abuse on the one hand and defamatory matter on the other: it does not follow from establishing that the matter complained of is vulgar abuse that it is not defamatory. 92 The relevant question will be whether the words are capable of damaging the plaintiff’s reputation in the eyes of ordinary, reasonable people. 93 The nature of defamation is that there are no close analogies: it is dangerous when determining whether imputations are defamatory to have regard to other cases concerning specific words. 94 Accordingly, words such as “vermin” and “bully” may be defamatory in one case but only mere vulgar abuse and not actionable in another. 95 The question depends upon the context of the publication and the terms and/or manner in which the words are expressed. 96

Context [3.220] In order to determine whether published words or material of which the plaintiff complains is defamatory it is necessary to take into account the context in which the words or material were used and the mode of publication. A plaintiff cannot select an isolated part of the material and complain of that alone if other parts throw a different light on the part selected. 97 Conversely, the context in which the words or material are used may mean that those words or material convey a defamatory meaning that they might not otherwise do. For example, a mere statement that a person is a suspect, is under investigation or has been charged is not enough to impute guilt or reasonable grounds for suspicion. 98 However, if accompanied by an account of suspicious circumstances that have aroused the interest of authorities and point towards a likelihood of guilt, a different impression may be created and the context may render the words or material capable of bearing a defamatory meaning. 99 The context of the material may include (as appropriate) headlines, headings, captions, accompanying visual images, introductions that precede and back announcements that follow 91

92

93 94 95 96 97 98 99

See, for example, Mundey v Askin [1982] 2 NSWLR 369 at 372 (description by Premier of Opposition as “vermin” not defamatory); Wood v Branson (1952) 3 SALR 369 (Transvaal) (describing a person as a “cow” or a “bitch” is meaningless abuse and not defamatory). See also Gwynne v Wairapa Times-Age [1972] NZLR 586 (publication likening protest marchers to “Hitler’s fascist people” and “Hitler’s puppets” not defamatory). Bennette v Cohen (2005) 64 NSWLR 81 at [51]. See, for example, Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) where as a purportedly satirical musical composition relating to the sexual orientation and preferences of the then Member for Oxley which was claimed by the defendant to be vulgar abuse was held to be “plainly defamatory for exposing the [plaintiff] to ridicule and contempt”. Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 at [130]. Bennette v Cohen (2005) 64 NSWLR 81 at [57]. RJ v JC [2008] NSWDC 217 at [16]. Bennette v Cohen (2005) 64 NSWLR 81 at [51]. Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 at 70. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [126]; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12]. Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [12].

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broadcast stories, the manner and extent of the publication and the audience to whom the material was published. In the case of a radio or television broadcast, it is inappropriate to review a transcript in order to determine whether the broadcast material is defamatory, because this will not convey the true context of the publication. Instead, a recording of the broadcast should be reviewed, unaided by a transcript, and the recording should not be repeated many times during the trial. 100 The scope of the relevant context may be an important consideration. With the progress of availability of radio, television, mobile telephones and the internet, with its vast possibilities such as various social networks, it is no longer possible to predicate loyalty to a particular television or radio channel, or a particular programme, since constant change is no further than the remote control is distant from the fingers. This may mean that the relevant context is properly more narrowly defined as a particular episode or part of an episode of a programme rather than the nature of the programme itself as shown by previous episodes. 101 Example

Ten Group Pty Ltd v Cornes [3.230] Ten Group Pty Ltd v Cornes [2011] SASC 104; (2012) 114 SASR 46 The defendant broadcast the Before the Game panel show, which combined highlights of AFL games, interviews with footballers and other information about football. It also featured guest panellists who were comedians and included comedic elements. During an interview with a footballer which canvassed, among other things, his match fitness, training and exercise regimes, and the performance of areas of players from various clubs before turning to his social status and sex life. At one point in the interview Malloy, a comedian who was a guest panellist, interjected that the footballer had had sex with the plaintiff, who was a married woman. The defendant argued that the imputation that the plaintiff had committed adultery did not convey a statement of fact when taken in context, which could be defined as either (1) the format of the Before the Game programme and knowledge of the reputations and prior activities of comedic members of the panel who took part in the subject interview; (2) the whole of the particular episode; or (3) the whole of the interview with the footballer. The trial judge held that due to the availability of an ever-increasing number of competing channels on both free-to-air and pay TV, as well as the attractions of some of the other many alternatives to television now available, loyalty to a particular channel or particular programme could no longer be predicated. Accordingly, the assumed characteristics of the ordinary reasonable viewer could not be taken to be imbued with knowledge of the previous episodes of the programme or the reputations or the previous activities of the panellists. The relevant context was therefore either the particular episode or the interview itself. There was substantial amount of what might be called “informative material” in the format of the programme, including the particular episode, 100 101

Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; TCN Channel Nine Pty Ltd v Mahoney (1993) 32 NSWLR 397. Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [51].

48 [3.230]

Chapter 3 – Defamation Ten Group Pty Ltd v Cornes cont. as shown by the interview itself. The elements of humour or attempted humour throughout the programme were not so pronounced that it made clear that statements contained in the informative segments, such as the subject interview, were to be understood as fantasy or being devoid of meaning. This approach was upheld on appeal to the Full Court.

Bane and antidote [3.240] A consequence of considering the material complained of in its context is that in one part of the material something disreputable to the plaintiff may be stated, but may be removed by another part: in other words the “bane and antidote must be taken together”. 102 The relevant question for the jury will be whether the antidote is effective to neutralise the bane. In determining this question the jury should consider the mode of publication and the relative prominence given to different parts of it. 103 Example

Charleston v Newsgroup Newspapers Ltd [3.250] Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 The plaintiffs were actors who portrayed the characters Harold and Madge Bishop in the long running Australian television serial Neighbours, which was popular among English audiences. The defendant newspaper published an article that appeared with a headline that read “Strewth! What’s Harold up to with our Madge?” immediately above two photographs showing the plaintiffs’ faces superimposed on the near-naked bodies of models in pornographic poses. The article made it clear that the photographs had been produced without the knowledge or consent of the plaintiffs and castigated the makers of a pornographic computer game which used the images. The plaintiffs sued the newspaper alleging that for some casual readers the photographs on their own or coupled with the headlines were capable of bearing a defamatory meaning. It was held in the House of Lords that the headline or photograph could not be considered in isolation from the related text. An ordinary, reasonable reader taking into account the entire publication, including the criticism of the makers of the computer game for victimising the plaintiffs, could not have gained the impression that the plaintiffs were involved in making pornographic films.

[3.260] This decision has been criticised by Kirby J in the High Court as being divorced from “the realities of the way in which ordinary people receive, and are intended to receive,

102 103

Chalmers v Payne (1835) 2 CM & R 156 at 159. Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65 at 70.

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communications of this kind”. 104 It ignored changes in media technology and presentation and denied a remedy to people whose reputation may be severely damaged by casual or superficial perception of such publications. His Honour thought the decision was wrong in so far as it attributed to recipients of matter published by the mass media a close and careful attention to the entirety of the item published. 105 The “antidote” must be sufficient to dispel the whole effect of the defamatory imputation and not only part. Example

Morosi v Broadcasting Station 2GB Pty Ltd [3.270] Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 A radio announcer referred to the plaintiff in the following terms: “Hers is the most notorious woman’s name in the country and now that she’s to have a baby there will be a spate of dirty jokes about her, and a variety of speculations as to who is the father, because everybody knows that Junie Morosi is an immoral adventurer … adventuress … who has slept with a variety of notable politicians, and most recently has been sleeping with Jim Cairns. In fact, of course, nobody knows any such thing. There is indeed not even the faintest suggestion that she has ever had any such relationship with any of the men she has known … there is no stain of any kind on her character … Junie Morosi showed once again that she is an intelligent, courageous, sensitive and, of course, a very handsome women.” At trial the issue of defamatory matter was withdrawn from the jury on the basis of the purported antidote. The New South Wales Court of Appeal held that what was required was essentially the weighing up and comparison of bane and antidote. It is a question of degree and competing emphasis. It is a matter of impression, taking into account the attributes of the notional listener. Here, while the announcer may have been said to have been trying to “champion the cause” of the plaintiff, in the circumstances it could not be said that the antidote so manifestly achieved its purpose that the issue of defamatory matter should have been withdrawn from the jury. 106

104 105 106

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574. See also Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) where the Queensland Court of Appeal held that it was “facile” to suggest that statements by a radio announcer prior to playing a song relating to the sexual orientation and preferences of the then Member for Oxley that it was “satirical and not to be taken seriously” could convert such “grossly defamatory” material into acceptable material.

50 [3.270]

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[3.280] It may be easier to arrive at an answer where the publication contains an express disclaimer 107 or where the antidote consists in a statement of fact destructive of the ingredients from which the bane has been brewed. 108 A popular misconception among some journalists is that simply adding the adjectives “alleged,” “allegedly” or words to that effect, to their reports of criminal proceedings or investigations, or other cases of alleged wrongdoing, is sufficient to remove any imputation from the domain of defamation. This is not the case. 109 It is also of no relevance that there were rumours or suspicions to the same effect as the defamatory imputation already in the public arena, 110 even where there is an additional attempt to provide an antidote, such as the addition of a qualification like “but there is nothing to prove that the rumour is true”. 111 The publication will be defamatory if, overall, there is merely the presentation of two conflicting versions. that affecting the plaintiff’s reputation and that doubting the charge, or if it includes a denial of allegations either by the subject of those allegations or by others on behalf of that person. 112 This is because a contradiction of an assertion does not oblige the viewer or reader to the refutation and oblige him or her to disregard the assertion. Instead, the ordinary, reasonable members of the community are presented with two conflicting assertions, with the choice of accepting either. 113 This means that the media must take particular care when reporting, for example, police investigations and court proceedings. Reporting that a person is under police investigation, has been arrested or charged with a crime, without more, is not defamatory 114 since ordinary,

107 108

Stubbs Ltd v Russell [1913] AC 386. Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420. Cf the unusual case Djuricanin v Foreign Language Publications Pty Ltd (unreported, NSW Supreme Court, 12 May 1995) where Levine J suggested that the antidote would be insufficient where it was written in English but the bane was in Serbian and readers could not read English.

109

Brown v John Fairfax & Sons Ltd (unreported, NSW Supreme Court, Hunt J, 13 July 1988); Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 170. Scott v Sampson (1882) 8 QBD 491 at 503; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 at 632-633.

110 111

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300; Lewis v Daily Telegraph Ltd [1964] AC 234 at 283. See also PC Heerey, “Publishing the defamatory statements of others” (1985) 59 ALJ 371 at 371.

112

Farquhar v Bottom [1980] 2 NSWLR 380 at 387-388; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631 at 632; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [111]-[114]. Tabloid media are accordingly unable to escape consequences in defamation for the publication of “sleazy gutter journalism” by dressing it up with expressions of “high minded principle and of shock and horror at the misbehaviour of its victims”: Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 169.

113 114

Savige v News Ltd (1932) SASR 240 at 245. See, for example, Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 (report of an arrest after “intensive investigation by a special squad of detectives” not defamatory); Rochfort v John Fairfax & Sons [1972] 1 NSWLR 16 (report that a person had been charged with a crime not defamatory).

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reasonable people understand that a person is innocent until proven guilty. 115 However, if the report goes beyond a factual account and is embellished so as to impute guilt, or at least that the plaintiff was suspected on reasonable grounds, then the publication may be defamatory. 116 As one judge remarked, “a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire, but it can be done”. 117 Similarly while it is possible to report suspicion without suggesting guilt, using loose language about suspicion can very easily convey the impression of guilt. As always, it is a question of the overall context. The context of the report, including any headlines, the layout, contents, general tenor and prominence, will be taken into account when determining whether the material conveyed an imputation of guilt. 118 Naturally, if the published material imputed guilt, a defence of justification could only be established if the publisher were able to prove that the person was in fact guilty. Similar considerations affect the reporting of civil litigation. Care must be taken to convey the impression that an allegation may have been made which was disputed and that the outcome remained to be determined. Otherwise, a report that imputes that the allegation is correct may be defamatory. 119 Again, a justification defence would only be successful if the publisher proved that the allegation was correct.

Intention and motive [3.290] The intention or motive of the publisher is irrelevant to the question of whether the published material is defamatory or not. It does not matter, therefore, if the statement was made, for example, by the media in order to disclose a wrongdoing by the subject of the publication, or even if it intended to defend the plaintiff against other allegations that had been made against him or her. 120 Nevertheless, the intention or motive of the publisher may be relevant in relation to certain defences, such as qualified privilege and honest opinion, and to the assessment of damages.

Judge and jury [3.300] There are initially two questions of law regarding defamatory matter: (1)

whether the matter complained of is capable of conveying the alleged imputations to the ordinary, reasonable reader/listener/viewer; and

115 116

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994). Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285. Sartor v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 1 April 1993).

117 118 119 120

Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1990] 2 NSWLR 845 at 850. See also Heerey at (1985) 59 ALJ 371 at 372. Lee v Wilson (1934) 51 CLR 276 at 288; Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420.

52 [3.290]

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(2)

whether those imputations are capable of bearing a defamatory meaning. 121

In deciding whether the matter is capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained, forced or utterly unreasonable interpretation. 122 The determination is “an exercise in generosity not parsimony” requiring a “high threshold of exclusion” since an adverse finding deprives a party of the opportunity to present his or her case to the jury. 123 If both those questions of law are answered in favour of the plaintiff, it then becomes necessary to determine two questions of fact: (1)

whether the ordinary reasonable reader/listener/viewer would, in fact, have taken the matter complained of as conveying those imputations; and

(2)

whether that reader/listener/viewer would, in fact, have understood such implications as being such as to cause ordinary decent folk in the community, taken in general, to think less of the plaintiff. 124

The issue for the trier of fact is the actual meaning of the words, not the question of what those words are capable of meaning. The meaning of the words is not determined by reference to the most damaging meaning that an ordinary listener or viewer might ascribe to the matter. 125 Where a claim for defamation is not resolved by the offer to make amends procedure 126 and instead continues to court proceedings that are tried by jury, the two questions of law would be determined by the judge and the two questions of fact would be determined by the jury. 127 The advantage of having the factual issues tried by a jury is that they represent the audience to which the defamatory publication was addressed, and are able to evaluate the competing issues utilising the moral and social standards that they share with the community at large and their understanding of mass media publications. 128 This makes them better placed than judicial officers to make these determinations. However, not all jurisdictions share the same attitude towards allowing parties to elect to have defamation proceedings tried by jury. In South Australia juries in civil actions such as defamation have been abolished and the Territories previously restricted the circumstances in which juries were available. These differences have carried over into the present regimes with juries in defamation actions now abolished in all three jurisdictions. 129 In the remaining 121 122

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [9] affirming Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 650 (SR (NSW)). Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952; Farquhar v Bottom [1980] 2 NSWLR 380.

123

Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135].

124 125 126

Farquhar v Bottom [1980] 2 NSWLR 380 at 385. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [105]. See [3.570].

127 128 129

DA: s 22(2). Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 at [19]. See Supreme Court Act 1933 (ACT), s 22; Juries Act (NT), s 6A; Juries Act 1927 (SA), s 5.

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jurisdictions unless the court orders otherwise, a plaintiff or defendant in a defamation action may elect to have proceedings tried by jury. 130 A trial judge has no power to dispense with a jury on his or her own motion. 131 Grounds on which a court may order trial without a jury include trials requiring a prolonged examination of records and all trials involving any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury. 132 The differing approaches to jury trials in defamation cases represent the main deviations from a truly uniform defamation system. Where defamation proceedings are tried by jury, the jury has the task of deciding whether the defendant has published defamatory matter about the plaintiff, and if so, whether any defence raised by the defendant has been established. 133 That is to say, the jury is to decide the issues of fact related to whether the material is defamatory, whether that material was about the plaintiff and whether it was published as well as issues of fact concerning the defences. The uniform defamation legislation does not require or permit the jury to determine issues of law, which have always been, and remain, the responsibility of the judge. 134 Once those determinations are made, the judge, not the jury, determines the amount of any damages and all unresolved issues of fact and law relating to the determination of that amount. 135

Single cause of action [3.310] Under the uniform defamation legislation a person has only a single cause of action for defamation where defamatory matter has been published, even where there is more than one imputation about the plaintiff in the publication.

130

DA: s 21(1). See further Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408 at [5] (“A request for defamation trial before a civil jury has been an infrequent occurrence in [Western Australia]”).

131 132

133

Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 at [94]. DA: s 21(3). Where a plaintiff requests trial by jury a defendant resisting such a trial on the basis of issues “that can not be conveniently considered and resolved by a jury” must be able to point to issues more compelling than merely the fact that the trial will involve extrinsic evidence in order to pursue true innuendo meanings and that defences such as qualified privilege and the Polly Peck defence will be involved: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd (No 2) [2014] WASC 408. DA: s 22(3).

134

DA: s 22(5)(b).

135

DA: s 22(3).

54 [3.310]

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Reasonably referable to the plaintiff Test [3.320] The defamatory matter must be “of and concerning” the plaintiff: it must reasonably be taken to refer to the plaintiff. 136 It is first a question for the judge to decide whether the material is capable of identifying the plaintiff, and then a question of fact whether it actually identified the plaintiff, to be determined by the jury if there is one. 137 The clearest example of material referring to the plaintiff is where the material identifies the plaintiff by name. 138 The same could be said for publication of the plaintiff’s visage. 139 However, it is not necessary for the publication to expressly refer to the plaintiff. The test is whether an ordinary, reasonable person would identify the plaintiff as a person being referred to. 140 It will therefore be sufficient if material that does not expressly refer to the plaintiff is published to persons who, because of their knowledge of extrinsic facts, reasonably understand the material to be referring to the plaintiff. 141 Example

Cassidy v Daily Mirror Newspapers Ltd [3.330] Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 A newspaper published a photograph of the plaintiff’s husband with another woman, accompanied by a statement that the photographed couple were engaged to be married. The English Court of Appeal held that although the plaintiff was not expressly referred to, and was indeed unknown to the defendant, the publication was referable to her since in the eyes of those who knew the plaintiff and the fact that she lived with the man in the photograph, the defamatory imputation was that she was not married to him and was instead his mistress.

[3.340] Similarly, to say of a television reporter that he or she was guilty of plagiarism and/or lazy journalism would also be taken as imputing against the reporter’s executive producer that he or she at least sanctioned that behaviour and against his or her producer that he or she actively participated in the detail of it in relation to the story in question. 142 136 137 138 139 140 141 142

Bjelke-Petersen v Warburton & Burns [1987] 2 Qd R 465 at 467. E Hulton & Co v Jones [1910] AC 25. See also DA: s 22(2). Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 54. Johnstone v Australian Broadcasting Commission (1993) 113 FLR 307; Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254. Morgan v Odhams Press Ltd [1971] 1 WLR 1239. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373-374. Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 at [99].

[3.340] 55

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Publications which reflect on an individual through their conduct of a business may not only reflect adversely upon that person’s private character but may also injure that person in his or her profession, business or trade. Words that reflect upon the person’s fitness or ability to undertake what is necessary in that business, profession or trade may amount to damage to reputation and be the province of defamation law, whereas malicious statements which results in damage not to reputation but to the business or goods of that person will be the province of the tort of injurious falsehood. 143 Nevertheless, as Gleeson CJ and Crennan J pointed out in John Fairfax Publications Pty Ltd v Gacic, 144 to say that a restaurant sells unpalatable food or provides bad service may not necessarily be a reference to the owners personally, since they may be worthy people who are themselves victims of circumstances or incompetent staff, but it may still have a tendency to damage their business reputation and not merely be referable to the business itself. Where there is a publication that refers to a product it will be a question of whether an ordinary reasonable recipient would regard that reference as also being a reference to individuals involved with that product. 145 Thus, for example, a news item reporting on the dangers of cigarettes and a recommendation that they not be available through newsagencies, even when using a specific newsagency as a backdrop, would likely not be a reference to individuals who ran that newsagency, whereas in an appropriate case a report on a dangerous consumer product which was only manufactured or sold by a small number of persons may reflect upon the reputation of those persons. 146

Time of reference [3.350] The plaintiff’s cause of action must arise at the time of the defendant’s act, that is the publication, and not later. Normally, therefore, if a plaintiff relies on the reader/listener/ viewer’s knowledge of extrinsic facts, that knowledge must exist at the time of the publication. Accordingly, a subsequent publication cannot be used as an extrinsic fact (or means by which the reader/listener/viewer’s knowledge of an extrinsic fact is obtained) in order to cause an otherwise innocent publication to be referable to the plaintiff, or to bear a defamatory meaning. 147 There are, however, two exceptions to this rule. The first is that a plaintiff may rely on a subsequent publication by the defendant where the matter complained of is defamatory on its face and where the subsequent publication by the defendant is used only to identify the plaintiff as the person referred to. In such a case the subsequent publication establishes that the defendant actually intended to refer to the plaintiff in the material complained of. Alternatively it is because, regardless of the defendant’s actual intention, the subsequent 143 144 145 146

147

Radio 2UE Pty Ltd v Chesterton (2009) 238 CLR 460 at [10]-[11]. See [3.1460] in relation to injurious falsehood. John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [6] Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [36]. Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [36]-[37] (in the circumstances even though the subject of the news broadcast was the product, a baby positioner, and not the applicants, the suggestion that the applicants would have designed and sold a product that could harm or even kill babies would have diminished their standing amongst ordinary members of the community). Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 88.

56 [3.350]

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publication leads the reader/listener/viewer to infer that the defendant had intended to refer to the plaintiff. 148 An example would be where a newspaper states that the person it is criticising was named in a particular way in an earlier edition of its own (or someone else’s newspaper), or will be named in a particular way in a later edition of its own newspaper. 149 The second exception, which is an extension of the first, is where the subsequent publication is by a third party where the matter complained of is interpreted by the ordinary reasonable reader/listener/viewer as inviting the reader/listener/viewer to ascertain the identity of the person to whom the defendant intended to refer from the subsequent publication. 150 Example

Baltinos v Foreign Language Publications Pty Ltd [3.360] Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 An issue of a daily morning Greek newspaper, published by the defendant, included an article that stated that SBS television would be broadcasting a story that evening about foreign visitors falling prey to “a number of slickers”. The plaintiff was not named or directly identified in the article. The SBS programme expressly identified the plaintiff as being involved in questionable activities. It was held in the New South Wales Supreme Court that although the article did not expressly refer to the plaintiff, it was sufficient that the identification was in the subsequent publication by a third party (SBS) since the material complained of would be interpreted by a reasonable reader as inviting him or her to ascertain the identity of the person to whom the defendant intended to refer from the subsequent publication.

[3.370] Similarly, where by clicking a hyperlink in a web page a reader is taken to another web page which identifies the plaintiff, it would seem likely that the first web page will be regarded as identifying the plaintiff. 151

Intention [3.380] The defendant need not have the intention of referring to the plaintiff. If defamatory matter is capable of relating to more than one person, then all who may reasonably be understood to have been referred to may bring an action, even where the defendant intended to refer to still another person. 152 148 149 150 151 152

Hayward v Thompson [1982] QB 47 at 60, 67-68; Ware v Associated Newspapers Ltd (1969) 90 WN (NSW) 180. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 97. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98. M Collins, The Law of Defamation and the Internet (2001), p 81. Lee v Wilson (1934) 51 CLR 276 at 295. Some judges have suggested that the intention of the defendant may be relevant where there is doubt whether or not the plaintiff was identified: see, for example, at 288-289 per Dixon J. However, see the argument to the contrary in Gillooly (1998), p 61.

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Example

Lee v Wilson [3.390] Lee v Wilson (1934) 51 CLR 276 A newspaper published an article alleging that “Detective Lee” of the Victoria Police was guilty of misconduct. There were in fact two Detective Lees and one Constable Lee in the Victoria Police. The High Court of Australia held that although the article was only intended to refer to the Constable Lee, each of the Detective Lees were able to show that people who knew him understood the words to refer to him. The two Detective Lees were therefore able to maintain actions against the newspaper.

[3.400] Such an unintended reference may be avoided by, so far as possible, removing any ambiguity concerning the subject of the published material and making it clear who is intended to be the true subject of the report. 153 A similar result may follow where fictitious work is published and the name and/or attributes of a fictional character may be understood by ordinary reasonable people as referring to the plaintiff. 154

Defamation of a group [3.410] Where a defamatory imputation is related to a group of individuals, the group is generally unable to sue for defamation. 155 However, one or several of the group may be able to maintain an action, depending on the circumstances, including the size of the class, the generality of the charge and the extravagance of the accusation. 156 The question whether the words refer in fact to the particular plaintiff or plaintiffs is a matter for the jury, the crucial question being whether on the true construction of the defamatory material, taken in conjunction with the relevant circumstances, is the material reasonably capable of being understood as being published of and concerning the particular plaintiff or plaintiffs. If the class is too large, no individual members of the class will be identified. However, if the group is small enough, defamatory material that refers to a group may, in some cases, be understood as relating to each and every one of them. 157 Accordingly, an allegation of corruption levelled at a government ministry (as opposed to, for example, a parliament or government as a 153 154 155 156 157

See also S Walker, Law of Journalism in Australia (1989), p 165. E Hulton & Co v Jones [1910] AC 20; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323. David Syme & Co v Canavan (1918) 25 CLR 234 at 238. There may, however, be an action for racial vilification in an appropriate case: see [9.20]. Knupffer v London Express Newspaper Ltd [1944] AC 116 at 124; David Syme & Co Ltd v Canavan (1918) 25 CLR 234 at 238. Bjelke-Petersen v Warburton [1987] 2 Qd R 465.

58 [3.390]

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whole) is capable of being read as identifying each member of the ministry. 158 Moreover, it is possible for a publication related to a group which is too large to allow individual members to sue, to contain an imputation particularly referable to a particular member of the group. 159 Example

Lloyd v David Syme & Co Ltd [3.420] Lloyd v David Syme & Co Ltd [1986] AC 350 A newspaper article alleged that members of the touring West Indies cricket team “took a dive” during the last game in the preliminary rounds of a triangular World Series Cricket tournament so that Australia rather than Pakistan would qualify for the final series against the West Indies, thereby ensuring greater crowd and viewer interest. The Privy Council held (approving the judgment of Priestley JA in the New South Wales Court of Appeal) that even though the plaintiff was not specifically referred to, the article was capable of being understood as referring specifically to the captain of the team in allowing such conduct to be performed by the team. He was therefore entitled to bring an action.

[3.430] By contrast, where a statement casts a slur on only one or some unnamed members of an identified group, the question of who may sue would seem to depend upon the nature of the slur. 160 If the slur is such that failure to name the particular member effectively casts a slur on all of the members, such as a statement that “I know which of the Ministers is corrupt,” all members of the group will have been referred to. 161 On the other hand, if it is possible to relate the imputation to only one of the group, such as a statement that “one of the partners was involved in fixing court cases,” none of the members of the group will have been referred to. 162

158 159

160

Bjelke-Petersen v Warburton [1987] 2 Qd R 465. Lever v Murray (unreported, NSW Supreme Court, 5 December 1992) (television report criticising the conduct of Aboriginal protesters “who are here” preceded by the plaintiff being shown as the leader of the group, sufficient to relate criticism to the plaintiff); Henry v TVW Enterprises Ltd (1990) 3 WAR 474 (television report criticising dentists including footage of plaintiff’s surgery sufficient to relate criticism to plaintiff). McCormick v John Fairfax & Sons (1989) 16 NSWLR 485.

161 162

Bjelke-Petersen v Warburton [1987] 2 Qd R 465 at 467. McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 at 491.

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Publication [3.440] For the purposes of defamation law “publication” does not bear its common parlance meaning of issuing a work like a book or a film to the general public, although a book or a film may be examples of the operative meaning. The defamatory material must be published in the sense of being communicated by words, conduct or other means to at least one person other than the plaintiff. 163 Where the material is not defamatory on its face, there will be no relevant publication unless the third person to whom the material is communicated is aware of extrinsic facts which makes the material defamatory and referable to the plaintiff. 164 Where only a section of the community is aware of the extrinsic facts, the case will proceed on the basis that there was publication only to the members of that group. 165 This may be relevant, for example, in relation to the extent of any damages awarded. A radio or television broadcast, or a story in a newspaper or magazine are all communications which are publications in the relevant sense. Publication on the internet, such as through email or a computer bulletin board or discussion group is also sufficient. 166 Of course the potential worldwide reach of publication on the internet has serious ramifications when it comes to, for example, assessment of damages. Further, in the case of an internet website with multiple pages with a different substantive identity, form and purpose, it has been held that each page constitutes a separate publication. The consequence is that a defendant may need to plead separate defences for each page rather than one defence for the whole website. 167

Republication [3.450] Republication, that is repeating defamatory material published by another, constitutes a publication which may give rise to a separate cause of action. 168 This will be the case whether or not the republishing party adopts the statement as his or her own, since mere repetition of the material exposes it to a new audience. 169 However, a party repeating a defamatory statement will not necessarily be liable in the same way as the maker of the primary statement. Whether or not the repetition carries the same defamatory imputation will depend upon the context of the republication. 170 For example, if the republication is in the 163

Pullman v Walter Hill and Co Ltd [1891] 1 QB 524.

164

Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86; Cross v Denley (1952) 52 SR (NSW) 112 at 116; Butler v John Fairfax Group Pty Ltd (unreported, NSW Supreme Court, Levine J, 25 May 1994). Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544.

165 166 167

168 169 170

This point was conceded by the defendant in Rindos v Hardwick (unreported, WA Supreme Court, Ipp J, 31 March 1994). Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 (Lange defence could not succeed for whole website because a distinct part of the site was clearly not concerning government or political discussion). Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1003; Watkin v Hall (1868) LR 3 QB 396 at 401. John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at [101]; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [116].

60 [3.440]

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context of a report of allegations which also indicates that the allegations are contested or have been rejected there is little or no chance that the republication will carry the same defamatory meaning. 171 A television or radio station will be liable not only for material published by its own employees, but also for any statements made by persons participating in live or recorded interviews or talkback programmes. Similarly, not only the author of a letter to the editor, but also the newspaper that publishes it, is liable for any defamatory material that it contains. 172 The media may be liable even though it expressly states that the publication is no more than a repetition of what the defendant or others have previously said, or prefaces the publication with an attempted disclaimer such as “it is alleged”. 173 This will be the case even where the original publication was privileged, such as statements made in parliament. Of course, the republication may itself be protected by an applicable defence such as qualified privilege or protected report. Generally speaking the original publisher will not be responsible for any republication. 174 However, the original publisher will also be liable for republished defamatory matter as a joint tortfeasor where the: • original publisher expressly authorised the republication of the material; • original publisher knew or intended the material to be republished; • republication of the material was the natural consequence of the original publication; or, • material was republished under a moral obligation to do so. 175 Example

Sims v Wran [3.460] Sims v Wran [1984] 1 NSWLR 317 The Premier of New South Wales conducted a news conference regarding a Royal Commission into allegations made on ABC television that the Premier had improperly intervened to have the then Chief Stipendiary Magistrate dismiss certain committal proceedings. At the news conference the Premier refused to answer questions asked by the plaintiff, an ABC journalist who had been engaged in day-to-day reporting of the Royal Commission, saying that the plaintiff had displayed personal malice in his reports and had not been objective. The remarks were widely republished throughout Australia on television and radio and in the press. 171

172 173 174 175

See, for example, Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679; cf Stern v Piper [1997] QB 123 (one-sided repetition without any surrounding words that might have had the effect of dispelling or negating the defamatory sting). “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997; McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77. Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296. Speight v Gosnay (1891) 60 LJQB 231 at 232; Whitney v Moignard (1890) 24 QBD 630 at 631.

[3.460] 61

Australian Media Law Sims v Wran cont. It was held in the Supreme Court of New South Wales that where a prominent politician makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his or her act will be that his or her statement will be republished in the media, thereby making him or her responsible for that republication, usually in whatever form in which that republication takes place.

[3.470] The plaintiff is required in such a case to plead each republication as a separate paragraph in his or her statement of claim, to enable the defendant to plead to it whatever defence may be appropriate. 176 Also, in judging whether, for example, the republication was intended or the natural and probable result of the original publication, it is necessary for the jury to consider the extent to which the published matter corresponded with the original publication. The mere furnishing by one person of some of the materials used by another in the preparation of a defamatory story does not constitute a publication of it by the former, if when printed or broadcast, the story as a whole is something very different from the material furnished. 177 It seems that liability may be imposed on this basis where a freelance journalist writes an article containing defamatory material and submits it to a newspaper for publication. 178 It may also apply where an informant provides information that forms the basis of a story 179 or where material produced by a media organisation is supplied for republication by other media organisations. 180

Place of publication [3.480] A television or radio broadcast is published in each place in which it is seen or heard. 181 A newspaper or magazine is published in each place in which it is made available to the public 182 and material on the internet is published in each place it is viewed by a browser. 183 In such cases of multiple publication, the uniform defamation legislation provides that “the substantive law applicable in the Australian jurisdiction with which the harm occasioned by the publication as a whole has its close connection” must be applied to determine each cause of action. 184

176

178

Sims v Wran [1984] 1 NSWLR 317 at 320; Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 195 (CA). Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 195 (CA), citing Howland v Blake Manufacturing Co 156 Mass 543; 31 NE 656 (1892). Walker (1989), p 149.

179 180 181 182

Cf Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 (CA). Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. Gorton v Australian Broadcasting Commission (1973) 22 FLR 181. McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611.

183 184

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575. DA: s 11(2); ACT: s 123(2); NT: s 10(2). See [3.40].

177

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Parties Who may sue Living persons [3.490] An action for defamation may be brought by any living person. However, since reputation is treated as personal to the plaintiff, an action for defamation commenced by a plaintiff comes to an end with his or her death 185 and does not survive for the benefit of his or her estate in all jurisdictions except Tasmania. 186 No action lies for defamation of the dead. Relatives or friends of a deceased person may only sue where a defamatory statement primarily concerning the dead person also involves a slur on those relatives or friends. 187

Bankrupts [3.500] A person who is bankrupt is entitled to bring an action for defamation, regardless of whether the imputation was published before or after the bankruptcy. 188 The action is personal to the bankrupt: neither it nor any damages that may be awarded vest in the trustee in bankruptcy. 189 The trustee does not have standing to bring an action even where the imputation is the reason for the bankruptcy. 190

Partnerships [3.510] A partnership may sue jointly for defamation where the imputation refers to the firm as a whole. 191 However, where the imputation only refers to an individual partner, only he or she may sue.

Corporations [3.520] Generally speaking, under s 9 of the uniform defamation legislation corporations now do not have a cause of action for defamation. 192 However, there is an exception in s 9(2) where the corporation is an “excluded corporation” that is: (a)

a corporation employing fewer than 10 persons not related to another corporation; or

185 186

Calwell v Ipec Australia Ltd (1976) 135 CLR 321 at 335. DA: s 10; cf Administration and Probate Act 1935 (Tas), s 27. In order to accommodate this statue, s 10 of the is intentionally blank to preserve conformity in the numbering of sections with the Defamation Acts in other jurisdictions.

187 188 189 190

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536. Bankruptcy Act 1966 (Cth), s 60(4). Re Wilson; ex parte Vine (1878) 8 Ch D 364. Howard v Crowther (1841) 8 M & W 601.

191 192

Smith v McQuiggan (1863) 2 SCR (NSW) 268. ACT: s 121; NT: s 8.

[3.520] 63

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(b)

a corporation whose objects do not include obtaining financial gain for its members or corporators – that is, a not-for-profit corporation – which is not a public body. 193

For these purposes part-time employees are taken into account as an appropriate fraction of the full-time equivalent. It has been held that while it is true that the verb “employs” may have a range of meanings, the use of the word “employees” when referring to “part time employees” means that the intent of the section is clear and unequivocal: the reference to “person” in s 9(2)(a) is limited to persons having contracts of employment. 194 The onus of demonstrating that the exception applies rests with the plaintiff. 195 It is therefore incumbent on a plaintiff to plead the facts and matters necessary to show that it has a cause of action, that is, that it is an “excluded corporation” under the Act. 196

Trade unions and unincorporated associations [3.530] A trade union may also bring an action with respect to allegations concerning the way in which it conducts its affairs. 197 By contrast, an unincorporated association, such as a social, sporting or charitable club or society, which has not become registered under the relevant State or Territory Associations Incorporation Act has no legal personality and, therefore, cannot sue for defamation. 198 Indeed, defamatory matter published about the club or society may not be sufficiently identifiable with office bearers of the club to give them a right to sue. 199

Elected bodies [3.540] It has been held that a popularly elected local authority, or local council, is unable to maintain an action for defamation of itself. Indeed the same observations may be no less applicable to a department of government. This is because in a democracy, people are encouraged to express their criticisms of elected governmental institutions in the expectation that this process will have the effect of improving the quality of the government. The fact that the institutions are democratically elected is supposed to mean that through a process of political debate and decisions citizens in a community govern themselves. It would be antithetic to such concepts if the elected government institution were able to invoke the law of defamation in order to preclude criticism of it. 200 However, if the reputation of any one person is wrongly impaired by the publication, that person may bring proceedings for defamation. Thus while a Council, parliament or public authority cannot sue for defamation, any individual 193

A “public body” is a local government body or other governmental or public authority.

194 195 196

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [104]. Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 at [6]. Edward Brewer Homes Pty Ltd v Home Builders Australia Pty Ltd [2010] WASC 257 at [15].

197 198 199 200

National Union of General & Municipal Workers v Gillian [1946] KB 81; Willis v Brooks [1947] 1 All ER 191. Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154. Cother v John Fairfax and Sons Pty Ltd (1947) 64 WN (NSW) 154. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 690-691 (per Gleeson CJ); 710-711 (per Kirby P), applying Derbyshire County Council v Times Newspapers [1993] AC 534.

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councillor, member of parliament, or public servant or appointee of the public authority sufficiently identified by the published matter is entitled to sue in his or her own right. 201 This approach is consistent with the implied constitutional freedom of communication concerning government and political matters. 202 Nevertheless, a popularly elected local government authority may take action for injurious falsehood, an action which requires the plaintiff to prove that the defendant maliciously published a false statement about or affecting the plaintiff, where actual damage results. 203 This principle does not require an electoral nexus between the critic and the plaintiff. Accordingly, it has been held that the same principle prevented an Aboriginal Land Council from suing for defamation by a Sydney radio announcer. Such Councils were established under the relevant Act as a system of local government for Aborigines who reside in a Council area. They were held to be sufficiently analogous to a local government corporation. 204

Who may be liable Living persons [3.550] A cause of action for defamation can only be asserted, continued or enforced against a living person. In almost all jurisdictions where a person has died since publishing a matter, any cause of action against him or her dies with him or her. 205

Contribution to publication [3.560] Every person who contributes to the publication of defamatory material, regardless of the precise degree of involvement, or who authorises it, is liable. 206 In the case of a newspaper or magazine article, this may include the author, editor, publisher, printer, proprietor, distributor and even news vendors on the streets. In the case of a radio or television broadcast, it may include the journalist, the editor, the producer, the executive producer, and the proprietor. This liability is joint and several. 207 Under normal principles of tort law, media employers will also be vicariously liable for the acts of their employees which are expressly or impliedly authorised, or which are performed in the course of their employment. Any proceedings against different contributors to the same publication must be in the one proceeding since the damage will be the same and they will be regarded as joint tortfeasors. 208 Accordingly, it would be an abuse of process to, for example, bring separate

201 202

Ballina Shire Council v Ringland (1994) 33 NSWLR 680. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 688-689 per Gleeson CJ, 709-710 per Kirby P.

203 204 205 206

Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 693-694 per Gleeson CJ, 733 per Mahoney JA. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300. DA: s 10(b); ACT: s 122(b); NT: s 9(b). Cf Administration and Probate Act 1935 (Tas), s 27. Webb v Bloch (1928) 41 CLR 331 at 363-364.

207 208

Webb v Bloch (1928) 41 CLR 331 at 359; Thiess v TCN Channel Nine Pty Ltd [1994] 1 Qd R 156 at 194. Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 at [84].

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proceedings against the journalist, the publisher and any other persons who have together engaged in publishing the same allegedly defamatory matter. 209 Liability for participating in the publication may also extend to include press agencies, advertisers, freelancers, 210 and the distributor of packaged subscription television services. Moreover, it has already been noted that by virtue of the law concerning republication, a newspaper may be liable for statements made in letters to the editor and a radio or television station may be liable for statements made in an interview or talkback programme, even where the views expressed by the original statement makers are not adopted. Where, on the other hand, the republication is in the form of one corporate entity republishing material published by another corporate entity belonging to the same publishing group, but not in exactly the same terms, the defendants will not be regarded as joint tortfeasors but instead successive tortfeasors because the damage that may be suffered from the publications by the two defendants will not be the same. 211 Liability for publication may arise in situations in which there has been a failure to act to prevent or terminate a publication by another, as in Byrne v Deane 212 where a club failed to remove a defamatory notice pinned on one of its notice boards by an anonymous member and was consequently regarded as itself having published the defamatory material. A clear parallel may today be drawn to the operator of a website or, online forum board who allows defamatory material to remain posted on the website or online forum despite being notified of its presence. 213 The degree of editorial control exercised over the website or online forum may be significant. 214 If the party controlling a website chooses to conduct an open anonymous forum available to the world, such as those commonly found on news media websites, without any system for scrutinising what is posted, then that party will be regarded as being no different from publishers of other media. 215 By failing to remove or obliterate the defamatory matter as soon as practicable, the party controlling the site may be deemed to have assumed responsibility for its continued presence in the place in which it has been posted. 216 Thus, for example, the operator of a website that hosts blogs subject to its terms, including the right to remove or block access to any blog that does not comply with those terms, may be regarded as a publisher of material appearing in those blogs if it does not 209

Age Co Ltd v Beran [2005] NSWCA 289; Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37.

210 211

Fleming (9th ed, 1998), p 594. Fairfax Media Publications Pty Ltd v Cummings [2013] ACTCA 37 at [79]-[85] (same story published in The Sydney Morning Herald and The Age but not in the same terms or to the same audience). Accordingly, each action would have a separate cap on damages rather than one cap being applied to both actions: see [3.1330]. Byrne v Deane [1937] 1 KB 818. Stratton Oakmont Inc v Prodigy Services Inc 1995 NY Misc LEXIS 229. Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991) where the lack of editorial control was an important factor in not holding the company that maintained the bulletin board liable for material posted on it.

212 213 214 215 216

Silberberg v Builders Collective of Australia Inc (2007) 164 FCR 475. Godfrey v Demon Internet Ltd [2001] QB 201 at 208-209 (ISP with actual knowledge that defamatory material had been posted on its bulletin board was held liable).

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remove defamatory comments within a reasonable time of receiving notice of them. 217 Such a party may be regarded as publishing the posting whenever and wherever anyone accesses the website or online forum containing it. 218 However, it may be necessary in such cases to show that the party controlling the site was aware, or at least ought reasonably to have been aware, that defamatory material would be likely to be published from time to time on the website. 219 A similar position may pertain to internet search engines. In an English decision it was held that a publisher must be shown to be knowingly involved in the process of communication, but in the case of automated search engines such as Google it was not possible to draw the necessary inferences of intention. They instead have been regarded as merely playing a passive, instrumental role in the process. 220 An analogy was drawn to the position of internet service providers (ISPs), which had previously been regarded as serving a merely passive role in facilitating postings rather than hosting websites and therefore were not to be deemed a publisher at common law, any more than a telephone company which merely facilitates a conversation containing defamatory content. 221 However, differing views have been expressed in Australia about the status of search engines, at least in relation to the time prior to notification. In the New South Wales case Bleyer v Google Inc LLC 222 McCallum J held that there was no human input in the application of the Google search engine apart from the creation of the algorithm, and agreed with the English line of authority that the function of the algorithm was not capable of establishing liability as a publisher at common law. By contrast, in the earlier Victorian case Trkulja v Google (No 5) 223 Beach J held that while such search engines were automated, they were the consequence of computer programs, written by human beings, which programs were doing precisely what the owners of the search engines and their employees intended and required them to do. 224 The point of disagreement may be relevant only in relation to claims relating to the period prior to notification. 225 Beach J held that factual differences aside, to the extent that the English decisions suggested that search engines and ISPs in principle only serve passive 217

Tamiz v Google Inc [2013] EWCA Civ 68 at [34].

218 219

Godfrey v Demon Internet Ltd [2001] QB 201 at 208-209. Robertson v Dogz Online Pty Ltd [2010] QCA 295 at [36]. See also ACCC v Allergy Pathway Pty Ltd (No 2) (2011) 192 FCR 34; [2011] FCA 74 at [33] where a company was held to have assumed responsibility for material in contempt of court which was posted by members of the public on its Facebook and Twitter pages. Metropolitan International Schools Ltd v Designtechnica Corp [2011] 1 WLR 1743 at [53] (EWHC) per Eady J. See also, which to the effect that hyperlinks (absent endorsement) do not constitute publication of the linked content by the person on whose webpage they appear.

220

221

222 223 224 225

Bunt v Tilley [2006] 1 WLR 1243 (EWHC) per Eady J. Cf Zeran v American Online Inc 129 F 3d 327 (4th Cir 1997) (immunity of ISPs under the Communications Decency Act 1996 (US), s 230 for wrongs committed by their users). See further the discussion of innocent dissemination in [3.1250]. Bleyer v Google Inc LLC (2014) 311 ALR 529 at [83]. Trkulja v Google (No 5) [2012] VSC 533. Trkulja v Google (No 5) [2012] VSC 533 at [27]. As McCallum J considered in Bleyer v Google Inc LLC (2014) 311 ALR 529, whereas Beach J in Trkulja v Google (No 5) [2012] VSC 533 was determining a case involving a search engine that had been notified of defamatory material.

[3.560] 67

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roles and therefore could not be regarded as a publisher they were inconsistent with well-established principles which have formed the basis for liability in the case of newsagents and libraries, as well as those cases like Byrne v Deane 226 where someone with power to remove a defamatory publication chooses not to do so in circumstances where an inference of consent can be drawn. For that reason they do not represent the common law in Australia, 227 where it has long been accepted that the law of defamation has never required a conscious intention to defame and the notion that conduct of a passive nature cannot amount to publication has been rejected. 228 Instead, the question will be: Whether, after relevant notice, the failure of an entity with the power to stop publication and which fails to stop publication after a reasonable time, is capable of leading to an inference that that entity consents to the publication. Such an inference is clearly capable of being drawn in the right circumstances … Further, if that inference is drawn then the trier of fact is entitled (but not bound) to conclude that the relevant entity is a publisher. 229

A similar position has now been effectively adopted for operators of websites in the United Kingdom following the enactment of the Defamation Act 2013 (UK), s 5. This section provides that the operator of a website has a defence where it can show that it was not the operator who posted a defamatory statement on the website, unless the identity of the person who posted the statement cannot be identified, and the operator has been given notice of the statement and failed to respond to that notice in the time and manner to be stipulated by regulations. By contrast, the Supreme Court of Canada has held that hyperlinks without endorsement do not constitute publication of the linked content by the person on whose web page they appear. This was held to be the case even though the person who owned the website was notified that the content to which it linked contained defamatory matter. 230 In other respects, however, the internet poses difficult challenges for the law of defamation. The ability of some to anonymously “hack” into systems and perhaps alter existing matter or introduce new matter, including inserting a link to another site, may easily result in defamatory imputations being conveyed without the victim being able to identify anyone to sue. Even if the victim were able to track down the offending computer in such a case, there is no guarantee that the actual miscreant who used that computer could be identified. 226 227

228

229

230

Byrne v Deane [1937] 1 KB 818. Trkulja v Google (No 5) [2012] VSC 533 at [29]. Cf Broadcasting Services Act 1992 (Cth) Sch 5 cl 9191 which provides that the common law has no effect the extent that it subjects internet content hosts an internet service providers to liability (whether criminal or civil) in respect of hosting content where the host was not aware of the nature of the content. See Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127 per Hunt J (defendant Council notified that posters imputing that the plaintiff was a Nazi war criminal had been glued to its bus shelters and requested to remove them but failed to do so despite having the ability to do so – Council held to be a publisher of the material). Trkulja v Google (No 5) [2012] VSC 533 at [31]. A website operator or search engine held to be a publisher may also have difficulty relying on the defence of innocent dissemination because that defence requires proof that the defendant or not reasonably to have known of the matter are that it has disseminated and that such lack of knowledge was not due to any negligence on its part. See further [3.1250]–[3.1280]. Crookes v Newton [2011] 3 SCR 269.

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Resolution of disputes without litigation Introduction [3.570] Prior to development of a uniform approach to defamation, New South Wales and the Australian Capital Territory had introduced similar processes designed to facilitate resolution of defamation disputes without recourse to litigation. These processes were aimed at providing a means by which defamation claims could be resolved quickly and inexpensively, with a view to more effectively vindicating reputation. A regime based on these processes has now been adopted by the uniform defamation legislation, which makes provision for a system based on an offer to make amends and to facilitate the making of apologies without the risk of liability being admitted.

Offer to make amends [3.580] Under the uniform defamation legislation, an “aggrieved person” may send to a publisher a written “concerns notice” which advises the publisher of the defamatory imputations that the aggrieved person considers to be carried by the matter. 231 The legislation does not prescribe any particular formula for such a notice. It therefore need not necessarily be in the form of a formal lawyer’s document “pleaded with black letter precision” but may instead be a letter from the aggrieved person himself or herself, provided it conveys the substance of the alleged defamatory imputations and puts the defendant on notice that the aggrieved person feels hurt and requests genuine amends. 232 If the concerns notice fails to particularise imputations adequately, the publisher is entitled to give the aggrieved person a written “further particulars notice”, which must be complied with within 14 days. Otherwise, the publisher has up to 28 days to make a written offer to make amends, which must include: 233 • an offer to publish, or join in publishing, a reasonable correction; • if the material containing the matter was given to someone else by the publisher or with the publisher’s knowledge, and offered to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person; and • a offer to pay the aggrieved person’s expenses reasonably incurred before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer. Presumably, this would include the costs of obtaining legal advice. The offer to make amends may include: 234 • any other kind of offer or particulars of any other action taken by the publisher to redress the harm sustained by the aggrieved person including but not limited to an offer to publish, or join in publishing, an apology; 231 232

DA: s 14(2); ACT: s 126(2); NT: s 13(2). Barrow v Bolt [2014] VSC 599 at [79].

233 234

DA: s 15; ACT: s 127; NT: s 14. DA: s 15; ACT: s 127; NT: s 14.

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• an offer to pay compensation for any economic or non-economic loss; • the particulars of any correction or apology made or action taken before the date of the offer. An offer to pay compensation may be in the form of a stated amount, an amount to be agreed or failing agreement as decided by a court, or as decided by a court. The offer to make amends may be limited to particular imputations and if so must particularise the imputation to which the offer is limited. The 28 day time limit serves to focus the publisher’s attention and help to ensure any settlement process takes place as quickly as possible. It may pose a problem, however, where a publisher wishes to make an offer of amends but finds itself out of time. 235 Accordingly, it is significant that the concerns notice may be constituted by a communication from the aggrieved person and need not be in a formal document prepared by lawyers since receipt of the notice starts the clock when determining the 28 day limit. In this connection, the publisher may be vulnerable if any concerns notice is first read by an employee who does not realise its significance and the urgency of the situation. Publishers will therefore be advised to implement systems that avert such a risk. An offer to make amends may be withdrawn at any time before it is accepted. A withdrawn offer may be renewed, in which case it is regarded as a new offer. In such a case the 28 day time limit does not prevent the making of a renewed offer that is not the same terms as the withdrawn offer if the renewed offer is a genuine attempt to address matters of concern raised by the aggrieved person about the withdrawn offer and is made within 14 days after the withdrawal or any other period agreed between the parties. 236 Where the offer is accepted and the publisher performs the amends agreement, the aggrieved person is precluded from commencing or continuing an action based on the publication. 237 Under s 18 if the offer is not accepted, it is a complete defence in any action if: • the publisher made the offer as soon as practical after becoming aware that the material is or may be defamatory; • the publisher was ready and willing to perform the terms of the offer; and, • the offer was reasonable in all the circumstances. 238 There is sparse authority that has considered the offer to make amends regime. In Pedavoli v Fairfax Media Publications Pty Ltd 239 McCallum J observed that the defence under s 18 serves the objects of the uniform defamation legislation, particularly the object of promoting speedy and non-litigious methods of resolving disputes “by creating a powerful incentive the 235 236

See, for example, Barrow v Bolt [2014] VSC 599. DA: s 16; ACT: s 128; NT: s 15.

237 238

DA: s 17; ACT: s 129; NT: s 16. DA: s 18; ACT: s 130; NT: s 17.

239

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674.

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defendants to make amends rather than to fight the cause”. 240 Her Honour noted that “the making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to indication of reputation”. 241 This was because if the offer is accepted the plaintiff cannot pursue the proceedings in court, but if it is rejected then if the offer was a reasonable offer there is a complete defence, even though the plaintiff might otherwise have an actionable defamation. Accordingly, while a defendant can apologise, in aid of the defence, with impunity, 242 a plaintiff who fails to accept a reasonable offer to make amends faces the “draconian sanction” of risking everything. 243 The mandatory requirement, in cases where the material containing the defamatory matter has been “given” to someone else, for the offer to include an offer to take, or join in taking reasonable steps to tell the other person that the matter is defamatory must be considered in the context of the section as a whole, including that which imposes a mandatory requirement to offer to publish, or join in publishing, a reasonable correction of the matter. 244 These two requirements evince an intention that in order to properly make amends a publisher must cooperate in the achievement of two objects – not only to publish a reasonable correction but also the identification of any other third parties to whom the material has been given. 245 The purpose of the second requirement is an acknowledgement that in order to properly make amends for having defamed someone a publisher must actively cooperate in stemming all of the harm done by the defamation, which in some cases may require more than merely publishing a correction to all of those to whom the publisher published the matter. 246 It is likely that the identity of all the people to whom the publisher has given the matter will only be known to the publisher, so that s 18 would not operate fairly if a defamed person was expected to consider an offer to make amends, at risk of losing his or her cause of action altogether by unreasonably rejecting it, without the means of knowing “how far the poison had spread”. 247 When considering whether the two mandatory requirements have been satisfied in an applicable case a distinction is drawn between the class of people to whom the defamatory matter was published, who would be caught by the offer to publish a correction, and others to whom the material was supplied to enable them to publish themselves. Example

Pedavoli v Fairfax Media Publications Pty Ltd [3.590] Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 240 241

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34].

242 243 244 245

See [3.630]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [34]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [41]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [41].

246 247

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [44]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [45].

[3.590] 71

Australian Media Law Pedavoli v Fairfax Media Publications Pty Ltd cont. The Sydney Morning Herald published a story about a female teacher who resigned from a prestigious private school after allegations of having unlawful sexual misconduct with a number of boys. The journalist who wrote the article carelessly included incorrect information that identify the plaintiff as the teacher concerned. The article was featured on two pages of the newspaper, promoted as one of the “editors picks” on the newspaper website, was read by an estimated 1,155 people via a link sent via Twitter and was republished by the newspaper’s sister publication The Age newspaper in Melbourne. When alerted to the defamatory matter, the newspaper promptly removed the incorrect identifying words from the online version of the article. The newspaper also made an offer to make amends offered to publish an apology in substantially the terms requested by the plaintiff and offered to pay the plaintiff the sum of $50,000 and reasonable legal expenses. The plaintiff did not accept the offer on the grounds that it was not a valid offer for the purposes of the defence since it did not comply with the mandatory requirements of s 15, in particular because it failed to address the material that was “given to someone else” by being available for download via the tablet app, on Twitter and by being made available for publication in The Age. She also claimed that it was not reasonable in all the circumstances. McCallum J of the New South Wales Supreme Court held that people who downloaded the newspaper via the tablet app would not be regarded as people to whom the matter was “given”, but rather were within the class of people to whom the matter was published and therefore who ought to have been included in the offer to publish a correction. In relation to the Twitter followers, tweeting the link was more than merely an advertisement for the newspaper like a newsagent’s billboard since it allowed access to the article itself to a wider audience which is unlikely to overlap completely with those who buy or subscribe to the newspaper in its print or web based forms. There was no difficulty in finding that the newspaper could be said to have given the material to The Age by making the article available for publication. Both cases therefore fell within the ambit of the second mandatory requirement rather than the offer to publish a correction. Accordingly the offer to make amends was not a valid offer because it did not include the mandatory offer to take, or join in taking, reasonable steps to tell those other persons for the matter given to them was or may be defamatory.

[3.600] In deciding reasonableness for the purposes of the s 18 defence, the court will take into account all of the circumstances, but in particular any correction or apology that is published prior to trial, with special attention to its prominence compared to that of the original publication and the time between the two publications. This involves a temporal paradox, requiring the court to make a determination of whether the offer was reasonable in the circumstances as they existed at the time the offer was made but with a mandatory reference to a correction or apology published after the plea of failure to accept a reasonable offer or not. 248 A degree of pragmatism may need to be taken in relation to the time between the two 248

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [75].

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publications. There may be good reasons behind a lengthy delay in making a correction or apology, including a delay in obtaining relevant evidence or in exchanging correspondence with the plaintiff. 249 The section places the burden on the defendant to show that in all the circumstances the offer was reasonable, rather than for the plaintiff to show how it was unreasonable. 250 A critical consideration when assessing the reasonableness of an offer will be its capacity to address the hurt and harm done by the publication, both in terms of its seriousness and its extent. 251 The prominence and reach of any apology warrant careful scrutiny. 252 Example

Pedavoli v Fairfax Media Publications Pty Ltd [3.610] Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 The Sydney Morning Herald published a story about a female teacher who resigned from a prestigious private school after allegations of having unlawful sexual misconduct with a number of boys. The story appeared under headlines that were likely to attract the attention of a large number of readers (“Female teacher quits top Catholic school after claim of sex with boys” and “Sex with student claims: female teacher quits top Catholic boys school”). The print version stretched over pages 2 and 3 of the newspaper and was visually stark. By contrast, the correction for incorrectly including information that identified the plaintiff was less gripping, published under the simple headline “apology”. On the website the apology was available for download via a link at the very bottom of the homepage headed “apology”. McCallum J of the New South Wales Supreme Court held that the prominence given to the apology was unequal to the prominence given to the matter that was subject to the complaint. The headline “apology” contained no words indicating the subject matter of the apology or the story to which it related, such as “apology to female teacher at Catholic school” or “correction of article on sex with boys”. The apology on the website was barely noticeable. In the case of such an apology the absence of any headlines such as to invite the attention of readers who had read the defamatory matter is all the more significant. The difference between the interest likely to have been generated by the headlines of the defamatory matter and the apology could scarcely be more stark. Further, there was no evidence that the apology was published to all of the audience of the defamatory matter. Even if the apology published in the printed newspaper and online was of sufficient prominence to reach roughly the same audience as the defamatory matter in those two forms of publication that was not the end of the issue so far as the tablet app was concerned. The evidence showed that there were over five 9000 unique page views and the defendant had failed to show that the apology had reached that audience. In addition, even if tweeting the link to the article on Twitter was

249 250

See, for example, Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [79].

251 252

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [81]. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [82]-[96].

[3.610] 73

Australian Media Law Pedavoli v Fairfax Media Publications Pty Ltd cont. regarded as publication rather than giving the defamatory matter to followers, no correction was tweeted to those followers and no step taken to tell them that the material was defamatory of the plaintiff.

[3.620] While the section states that if two or more persons published the defamatory material and often make amends by one does not affect the liability of the others, this does not mean that an employee of a publisher, such as a journalist or editor, is required to make a separate offer of amends in order to avail themselves of the s 18 defence, if a reasonable offer to make amends is not accepted. In such a case the offer made by the publisher should be construed as also extending on behalf of the publisher’s employees and agents. 253 The offer of amends regime is not without difficulty. As Gillooly points out, the absence of an “innocence” factor undermines the rationale of the defence, that is the accidental nature of the defamation. This may effectively provide a publisher with the ability to engage in scurrilous defamation and yet be exonerated by simply making a “reasonable” offer of amends. Further, there is no indication whether “reasonableness” is to be judged at the time of the offer, at the time of the trial or some other time, nor of the specific matters that are to be taken into account besides any correction or apology that has been made. 254

Apologies [3.630] It was previously the case that there was a positive disincentive for a publisher to apologise for publishing defamatory matter since such an apology could be construed as an admission of liability, although in most jurisdictions an apology could, for example, mitigate damages. This position has now been changed by the uniform defamation legislation. It is now expressly provided that an apology made by or on behalf of a publisher of defamatory matter does not constitute an express or implied admission of fault or liability and it is not relevant to the determination of fault or liability. Further, evidence of an apology is not admissible in any civil proceedings as evidence of fault or liability. 255 Moreover, an apology may still operate to mitigate damages awarded in respect of the defamatory matter. 256

253 254

Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 at [73]. M Gillooly, The Third Man: Reform of the Australasian Defamation Defences (2004), p 215.

255 256

DA: s 20; ACT: s 132; NT: s 19. See [3.1360].

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Defences Introduction [3.640] The law of defamation constitutes a substantial constraint on freedom of speech. As a consequence, the law seeks to strike a balance between the reputation of the individual, which it seeks to protect, and freedom of speech by recognising a number of defences to protect those who publish defamatory material. The uniform defamation legislation makes provision for nine defences. 257 In addition, the legislation preserves the operation of common law defences. 258

Justification [3.650] It has been noted that in all jurisdictions falsity is not an element which a plaintiff must prove in order to have a cause of action for defamation. However, s 25 of the uniform defamation legislation 259 adopts the common law position in allowing the substantial truth of the defamatory imputations to be pleaded as a complete defence. In essence the defence involves a “confession and avoidance” – admitting the imputations pleaded but avoiding liability on the grounds that those imputations are substantially true.

Motive [3.660] The publisher’s motive is irrelevant to the defence of justification. If the publisher can show that the imputation is true then it does not matter that he or she was motivated by malice. Similarly, if the publisher is unable to prove that the imputation is true, perhaps because a journalist wishes to protect his or her sources, then the fact that the publisher was acting with worthy motives on the basis of reasonable information will not serve to excuse the defendant. 260

All imputations to be justified [3.670] The publisher is required to justify all defamatory imputations in the publication. 261 If a publisher can only establish that one of two or more stings relied upon by the plaintiff was substantially true, the defence of justification fails but the evidence led to establish that defence may be relied upon in mitigation of damages. 262 Accordingly, the defendant must establish the truth not only of the natural and ordinary meaning of the material published, but also of any innuendo meanings which are pleaded. 257 258

DA: ss 25 – 33; ACT: ss 135 – 139D; NT: ss 22 – 30; SA: ss 23 – 31. DA: s 24(1); ACT: s 134(1); NT: s 21(1); SA: s 22(1).

259 260 261 262

ACT: s 135; NT: 22; SA: s 23. Crowley v Glissan (1905) 2 CLR 744. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [306]. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [158]. In relation to such “partial justification” see [3.1360]. In the United Kingdom this essential precept of the justification defence was

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This may mean that in practice the defence may in some circumstances not be an attractive one for the media, even where it is confident that the material published is correct. Thus, for example, a report that a person has been charged with an offence which also conveys the imputation that the person is guilty of the offence will not be justified simply by proof that the person was in fact charged. The defendant would be required to go on to also justify the imputation of guilt, a task which would require proof that the person was in fact guilty of the offence. 263 Similarly, where a publication conveys an imputation of suspicion of guilt, to establish the defence of justification the defendant is required to prove that the plaintiff was suspected by the police, with reasonable cause, of having committed the offence in addition to the conduct of the plaintiff which gave rise to the suspicion. 264 It is a prudent precaution for the media when reporting that a person had been charged with an offence to refrain from naming or otherwise identifying the person until the person has appeared in court, thereby removing one of the essential prerequisites for a cause of action for defamation. Once the accused has appeared in court, the media can rely on the defence of privilege in the fair reporting of judicial proceedings. 265 Substantial truth means that provided the justification meets the substance of the imputation, minor inaccuracy will not exclude the defence. It has been held, for example, that to say that a plaintiff had been sentenced to a fine with an alternative of three weeks imprisonment was justified by showing that the alternative jail term was in fact two weeks. 266 Similarly, if the publisher states that the plaintiff stole a car from the garage of a house and sold it the following day, the sting of the defamatory matter may still be justified if the true facts were that the plaintiff stole the car not from the garage but from the driveway and did not sell it the next day but a week afterwards. The mistakes in such a case would make no substantial difference to the quality of the alleged defamation or in the justification pleaded for it. By contrast, if the publication stated that the plaintiff took the car and thereafter sold it, but the true facts were that the plaintiff was acting under the mistaken belief that the car’s owner had authorised him or her to sell the car on his or her behalf, then while the statement that the plaintiff had taken the car and sold it may be meticulously true in fact, it will nevertheless be false in substance and therefore not be justified. 267

264 265

abolished by Defamation Act 2013 (UK), s 2 and replaced by a defence of truth, which provides that if one or more of the imputations is not shown to be substantially true the defence does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation. Lewis v Daily Telegraph [1964] AC 234; Mirror Newspaper v Harrison (1982) 149 CLR 293 at 302; Sergi v ABC [1983] 2 NSWLR 669 at 676-679; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 415. The uniform defamation legislation now provides that proof that a person was convicted of an offence by an Australian court is conclusive evidence that the person committed the offence, and proved that a person was convicted of an offence by a court of any country or court martial is evidence that the person committed the offence. Further, the contents of a document that is evidence of conviction of an offence and the contents of an information, complaint, indictment, charge sheet or similar document are admissible in evidence to identify the facts on which the conviction is based: DA: s 42; ACT: s 139M; NT: s 39; SA: s 40. Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [31]. A Smith, “Publish and be damned” (1987) 61 LIJ 914 at 917. In relation to this defence see [3.800]–[3.850].

266 267

Alexander v North Eastern Railway Co (1865) 6 B & S 340. Cf the saddle example proposed by Lord Shaw in Sutherland v Stopes [1925] AC 47 at 79.

263

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The media may be liable for defamation where it republishes a defamatory rumour since such a publication would carry with it the innuendo that there may be substance to the rumour. 268 In such a case, the defendant would be required to show not only that it had accurately reported what another person had said, but also that the substance of the rumour was true. 269 The publisher obtains no protection in this regard by prefacing its remarks with words such as “it is rumoured that”, “I have heard that” or “it has been said that”. Not even a statement that the publisher does not believe that the rumour is true will relieve him or her from liability, 270 although in an appropriate case where an imputation is repeated but then entirely refuted, such that the antidote is equal to the bane, the publication may be discharged of its defamatory sting. 271

Publications containing both fact and opinion [3.680] Where a defendant publishes an opinion which is defamatory, he or she will usually rely on the defence of fair comment or honest opinion. 272 However, where a publication contains defamatory statements both of fact and of opinion, if the defendant wishes to plead justification he or she must prove both that the statements of fact are true and that the statements of opinion are “correct”. 273 While opinions may be thought of as individually-held beliefs, and in that sense incapable of being proven true or false, it seems that the defence of justification will be made out where the comment is accurate, that is actually justified by, in the sense of being naturally implicit in, the facts which are stated and which can be proved to be true. 274 In other words, the defendant must show that the facts warrant the imputation in the sense of being a conclusion which any reasonable person would draw from those facts. 275 In an appropriate case, evidence of facts which occurred within a reasonable time after the publication and which go to show the existence of an alleged tendency may be admitted. 276 The elements of the defence of justification and the fair comment/honest opinion defence are different. While a finding that the imputation involves a comment which is shown to be correct would be sufficient by way of a defence of justification it would not necessarily satisfy the defence of fair comment/honest opinion. For example, a defendant who does not honestly hold the opinion will not be able to rely on the defence of fair comment/honest opinion whereas the state of mind of the defendant is irrelevant to the defence of justification. 277 268

Watkin v Hall (1868) LR 3 QB 396 at 403.

269

Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50; “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002. Savige v News Ltd [1932] SASR 240; McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339 at 346. See also Heerey (1985) 59 ALJ 371 at 371.

270 271 272

See [3.240]–[3.280]. See [3.1110]–[3.1120].

273 274 275

Sutherland v Stopes [1925] AC 47 at 62-63, 75. Goldsbrough v Fairfax (1934) 34 SR (NSW) 524 at 530. Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 320.

276 277

Maisel v Financial Times Ltd [1915] 3 KB 336. Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [56].

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The “Polly Peck” defence Imputations with a common sting [3.690] Where a publication contains two or more separate and distinct defamatory imputations, the plaintiff is entitled to select one for complaint and the defendant is not entitled to assert the truth of others by way of justification. 278 Thus, if the publication conveys imputations X, Y and Z, the plaintiff may seek to sue only in respect of imputation X and it is irrelevant that the defendant could justify imputations Y and Z. If a defendant was to say of someone that he or she murdered his or her father, stole from his or her mother and kicks his or her dog, which statement forms the basis of a defamation action complaining only of the allegation that he or she kicks his or her dog, the defendants cannot seek to justify the major charges of murder and theft because the plaintiff has not complained of them. 279 Whether a defamatory imputation is separate and distinct from other defamatory imputations contained in the publication is a question of fact and degree in every case. It may be that several defamatory allegations in their context have a common sting, in which event they are not properly regarded as separate and distinct allegations. A Polly Peck defence entitles the defendant to justify only the common sting, and need not justify each of the allegations made in the publication, or even series of publications. 280 Such a defence might be appropriate where, for example, a publication alleges that the plaintiff engaged in affairs with a number of named men, with a common sting of promiscuity. Proof that the plaintiff had in fact engaged in a number of affairs would be sufficient, notwithstanding that the defendant may not be able to prove the allegation of the particular affair about which the plaintiff complains. 281 It also follows that where several allegations have a common sting, slight inaccuracies of detail which do not affect the substance of the charge will not prevent the defence being successful. 282

Polly Peck in Australia and the Hore-Lacy defence [3.700] Attitudes to the Polly Peck defence in Australian courts have been mixed. The defence was accepted or assumed to be available in several jurisdictions. 283 However, it was

278 279 280

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032. Speidel v Plato Films Ltd [1961] AC 1090 at 1142. Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032. The same reasoning applies equally to the defence of fair comment. In Australia, the epithet “Polly Peck defence” is sometimes also used to describe a defence where the defendant denies the plaintiff’s meaning and seeks instead to justify another meaning. In England such a defence is instead called a “Lucas-Box defence” after Lucas-Box v News Group Newspapers [1986] 1 WLR 147 (plaintiff alleging article imputed that she knowingly assisted Italian terrorists or was reasonably suspected of doing so – defendant permitted to seek to justify imputation that the plaintiff associated with various Italians); see the discussion of these defences in Kenyon (2006), pp 80-87.

281 282 283

See Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412 at 1417. Potts v Moran (1976) 16 SASR 284 at 306; Walker (1989), p 171. See, for example, Victoria: Kennett v Farmer [1988] VR 991; Carrey v ACP Publishing Pty Ltd [1999] 1 VR 875 esp at 885-886; South Australia: Jakado Pty Ltd v SA Telecasters Ltd (1997) 69 SASR 440; Western Australia: Gumina v Williams (No 2) [1990] 3 WAR 351 (FC) but note Wallace v Wallace [2001] WASC 134; Australian Capital Territory: TWT Ltd v Moore (1991) A Def Rep 51,030; Woodger v Federal Capital Press of

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strongly criticised in Chakravarti v Advertiser Newspapers Ltd 284 by Brennan CJ and McHugh J, who regarded it as contravening the fundamental principles of pleading by enabling the defendant to allege a different meaning from that relied upon by the plaintiff. This may result in the introduction of evidence that will increase the length of the trial, may tend to cloud the issues and work to the prejudice of the plaintiff. Their Honours thought that it was apt, therefore, to raise “a false issue which can only embarrass the fair trial of actions”. 285 It was suggested in the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy 286 that the criticisms raised by Brennan CJ and McHugh J may be addressed if the defendant were limited to justifying a meaning on which the plaintiff might himself or herself have succeeded at trial on the pleadings as they are. It was once the case at common law that the plaintiff sued on the publication and could succeed on any defamatory meaning the publication could bear. When it became the norm for the plaintiff to be required to plead the meaning he or she was relying upon, he or she could not seek a verdict on a different meaning. However, it was recognised that due to the fact that the plaintiff sued on the publication, and at common law the trier of fact was still not constrained to find for the plaintiff on the meanings he or she particularised, there was an exception where a plaintiff could rely on a different meaning which was a mere shade or nuance of, and not different in substance from, that pleaded. Accordingly there should be no unfairness if the defendant were allowed to rely on a meaning not pleaded by the plaintiff only if it is only a shade or nuance of, and not different in substance from, the pleaded meaning. 287 This approach is much narrower than a Polly Peck defence interpreted to mean that there is latitude for a defendant to plead, at whatever level of abstraction, that there is a common sting to the imputations which can be justified by evidence not bearing directly on the matter of which the plaintiff complains. 288 A defence based not on justifying a common sting as permitted by a Polly Peck defence but instead on denying the meanings pleaded by the plaintiff and justifying nuances or shades of the meaning pleaded by the plaintiff is referred to as a Hore-Lacy defence. The Hore-Lacy defence has been held to have

284 285

286 287

288

Australia Pty Ltd (1992) 107 ACTR 1; Northern Territory: Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135. The defence previously had no application in New South Wales where each imputation was regarded as giving rise to a separate cause of action, so that it could not be said that there was a common sting to imputations in the publication: Defamation Act 1974 (NSW), s 9 (now repealed) but see Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 100. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 527-528; followed in Robinson v Laws [2003] 1 Qd R 81; cf Gaudron and Gummow JJ who have been interpreted as assuming that the defence was available ((1998) 193 CLR 519 at 543-546): see Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 at 216. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [53]-[54] per Charles JA. Callaway JA also took a narrower view than Polly Peck. Charles JA’s view was approve in substance by Anderson J in Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 at [13]-[14], while Steytler J’s approach was similar to that of Charles JA under the guise of allowing Polly Peck to be pleaded. McLure J took a similar approach. In Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 the Full Court of the Supreme Court of South Australia approved Charles JA’s approach. Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206 at 220. See also Robinson v Laws [2003] 1 Qd R 81.

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survived the enactment of the uniform defamation legislation 289 and has been described by the Victorian Court of Appeal as “soundly principled and [a] very useful expression of the common law of defamation”. 290 It represents a departure from what was said in Polly Peck and substantially confines the ability of the defendant to plead meanings other than those pleaded by the plaintiff. 291 It has been subsequently applied in other jurisdictions, 292 although a 2-1 majority of the New South Wales Court of Appeal held that since the Uniform Civil Procedure Rules 2005 (NSW) required all defences to be pleaded with respect to particular imputations, defendants were not permitted to plead their own, different versions of imputations (even if they were not substantially different). 293 As a consequence it was held that the Hore-Lacy defence did not apply in that State but was confined to jurisdictions like Victoria where procedure rules meant that plaintiffs were not strictly bound by pleaded imputations, so that defendants were allowed to plead their own versions of the imputations. 294 Three years later a differently constituted Victorian Court of Appeal in Herald & Weekly Times Ltd v Popovic 295 appeared to soften this stance on the Polly Peck defence. Deflecting the criticism by Brennan CJ and McHugh J, it was held that the Polly Peck defence was a proper defence in Australia, although “a rare animal and not often available”. 296 It was considered appropriate where first the plaintiff does not plead the proper imputations arising from the words complained of and forming the basis of the plaintiff’s case, and secondly, where there is a common sting which is not separate and distinct from the way the plaintiff has pleaded his or her case. Justice and fairness to both parties were thought to require the defence where a defendant intended to plead justification in relation to meanings conveyed by the words about which the plaintiff was complaining. Nevertheless, courts were to be vigilant that a claimed Polly Peck defence was proper and permissible. The defence is not available as a partial justification, nor where there was a separate and distinct defamatory imputation 289 290 291

Setka v Abbott [2014] VSCA 287 at [93]-[116]; [302]-[312]. Setka v Abbott [2014] VSCA 287 at [68]. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [63] per Charles JA; Setka v Abbott [2014] VSCA 287 at [58].

292

See, for example, Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; Advertiser-News Weekend Publications Co Ltd v Manock (2005) 91 SASR 206; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290 (ACTSC); Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135; see also Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174.

293

Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [164] per Basten JA, Macfarlan JA agreeing. Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [189]-[194] per Basten JA, Macfarlan JA agreeing. McColl JA dissented on the ground that the Hore-Lacy pleading avoided trial by ambush because it put the plaintiff on notice of the meanings the defendant would be contending at trial were not substantially different from those raised by the plaintiff and which the defendant claimed to be substantially true: at [100]. Moreover his Honour thought that the trial judge erred in striking out the Hore-Lacy pleading in this case because she was bound to follow its approval by the intermediate appellate courts of other States of Australia, particularly in the context of the enactment of uniform defamation legislation: at [77], [110].

294

295 296

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [301] per Gillard AJA with whom Winneke ACJ and Warren AJA agreed.

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not relied upon by the plaintiff which is not inextricably bound up with the way the plaintiff has pleaded the imputations. 297 Elsewhere some courts in New South Wales have opined that the Polly Peck defence is not part of the common law of Australia, 298 while courts in others jurisdictions have suggested that it is still available. 299 Accordingly, the position regarding the Polly Peck defence is in a state of flux. State appellate court authority is divided on whether to support, read down or reject the defence, while there was a lack of a clear majority on the point in Chakravarti. The enactment of uniform defamation legislation has not altered this position. The final fate of Polly Peck in this country awaits a clear decision of the High Court.

Contextual truth [3.710] At common law the plaintiff is entitled to choose which of a number of imputations to rely upon, perhaps ignoring some other more serious allegation because the defendant may be able to justify it. 300 This situation is addressed by s 26 of the uniform defamation legislation 301 with a defence of “contextual truth”. This section allows a defendant in such a case to raise and justify the more serious imputation in order to establish that the plaintiff’s reputation has not actually been damaged as alleged by the plaintiff in seeking to confine the complaint to the less serious imputation selected by him or her. 302 The defence of contextual truth under the uniform defamation legislation requires the defendant to show two elements: (a)

that the published matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations – which are known as contextual imputations – that are substantially true; and

(b)

that the defamatory imputations which the plaintiff complains do not further harm of the plaintiff’s reputation because of the substantial truth of the contextual imputations. 303

A contextual imputation must differ in substance from the plaintiff’s imputations. 304 An ordinary reasonable person must have understood the matter complained of as having conveyed at the same time both the imputations relied upon by the plaintiff and the contextual imputations 297

Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [324].

298

John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [42] per Handley JA; Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 at [60] per Nicholas J; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 at [152]. See, for example, West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109; Caccavo v Daft [2006] TASSC 36 at [14]-[15]; Madden v Seafolly Pty Ltd [2014] FCAFC 30. Plato Films Ltd v Speidel [1961] AC 1090 at 1142.

299

300 301 302 303 304

ACT: s 136; NT: s 23; SA: s 24. Wookey v Quigley [2009] WASC 284 at [62]. Cf the contextual truth defence that previously existed in New South Wales (Defamation Act 1974, s 16(2)) and Tasmania (Defamation Act 1957, s 18). Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [27].

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relied upon by the defendant. 305 A contextual imputation will not be permitted if it is merely an alternative formulation of the plaintiff’s imputation (such as pleading a contextual imputation related to the same class of misconduct but in more general terms) 306 or if its defamatory sting is the same as the defamatory sting of the plaintiff’s imputation. 307 There must be a difference in kind. Whether is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether there is a contextual imputation that is carried in addition to them. 308 That said, no different from the determination of whether the plaintiff’s imputations are capable of being defamatory, determination of a defendant’s contextual imputation is an “exercise in generosity not parsimony”. 309 Nevertheless, alleged contextual imputations will be struck down where they are vague, imprecise or not “in addition to” the plaintiff’s imputations. 310 Each case will depend on its own circumstances. Like the defence of truth under s 25, a defence of contextual truth under s 26 must defeat the whole defamatory matter of which the plaintiff complains. 311 The section requires the tribunal of fact to conduct a weighing exercise and to conclude that because of the substantial truth of the contextual imputations the defamatory imputations relied on by the plaintiff do not further harm the plaintiff’s reputation. 312 There may be some cases in which the potentially defamatory effect of the defendants’ imputation could not, on any rational view, be such as to further the harm brought on a plaintiff’s reputation, by reason of the imputation relied on by the plaintiff. Generally, however, it will be a matter for the judgment of the jury (if there is one), bringing into court their worldly experience and knowledge of human affairs, to determine whether the plaintiff’s imputation did not further harm his or her reputation, because of the substantial truth of the defendant’s contextual imputation. 313 Because the contextual truth defence under s 26 requires the defendant to respond to all of the plaintiff’s imputations the defendant is unable to “plead back” any of the plaintiff’s imputations as being contextual imputations. 314 In other words, any imputation pleaded by the defendant must be different from those pleaded by the plaintiff. Accordingly a contextual truth defence under s 26 and a Hore-Lacy defence under the common law are, at least in a 305 306

307 308 309 310 311 312 313 314

Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [16]. John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [16]; Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [18]; Ives v State of Western Australia (No 8) [2013] WASC 277. Accordingly an imputation that “the plaintiff is a conman” would not be a valid contextual imputation to an imputation that “the plaintiff is a conman in that he scams customers of his electrical business”: Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [20]. Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [27]. Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [28]. Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [31]. See, for example, King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [78]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [79]. Soultanov v The Age Co Ltd (2009) 23 VR 182 at [51]-[52]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [80]; cf the practice previously permitted in New South Wales with respect to the contextual truth defence provided by Defamation Act 1974, s 16(2) due to the fact that each imputation constituted a separate cause of action.

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practical sense, alternatives – both cannot be successful. The former involves rejecting the plaintiff’s imputations and instead asserting imputations which are different in substance whereas the latter proceeds on being permissible variants of the plaintiff’s imputations. 315 There are authorities supporting the view that s 25 and s 26 should be applied sequentially. Accordingly, in Besser v Kermode 316 the New South Wales Court of Appeal stated the correct approach for a defendant would be essentially as follows: (a)

prove under s 25 that the defamatory imputations alleged by the plaintiff are substantially true;

(b)

prove under a common law Hore-Lacy defence that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;

(c)

to the extent that the defendant fails to establish all the defamatory imputations alleged by the plaintiff are substantially true, rely on those proved to be true (in other words, “partial justification”) in mitigation of the plaintiff’s damages; 317 and

(d)

to the extent that the defendant cannot prove that the defamatory imputations alleged by the plaintiff are substantially true, under s 26 prove that the defamatory matter carries contextual imputations that are substantially true and because of that the defamatory imputations alleged by the plaintiff do not further harm the reputation of the plaintiff.

The Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd 318 approved a similar literal meaning of the sections adopted by the trial judge in that case: Section 25 allows the defence of justification only “if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true”. That reflects the fact that the cause of action under the Act is for publication of defamatory matter, rather than for publication of a severable defamatory imputation. It requires proof of the substantial truth of every defamatory imputation of which the plaintiff complains. In the absence of such proof, s 25 does not provide a defence. Section 26 then requires the defendant to prove that “the defamatory imputations” – meaning all of the defamatory imputations of which the plaintiff complains – do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

Subsequently, a differently constituted New South Wales Court of Appeal in Born Brands Pty Ltd v Nine Network Australia Pty Ltd 319 suggested without finally deciding that there may be an alternative approach that involves reading s 25 and s 26 together. This would mean that the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff and then decide whether, by reference to the imputations pleaded by 315 316 317 318 319

Setka v Abbott [2014] VSCA 287 at [299]. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [86] per McColl JA (Beazley and Giles JJA agreeing). See [3.1360]. Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 at [14] per Fraser JA (Holmes JA and Fryberg J agreeing). Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [86] per Basten JA (Meagher and Tobias JJA agreeing).

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both the plaintiff and the defendant, any imputations which have not been shown by the defendant to be substantially true cause any further harm to the reputation of the plaintiff. Thus if the plaintiff alleges imputations A, B and C, and the defendant suggests there are contextual imputations D and E in the publication, reading s 25 and s 26 together would mean that if the defendant was able to prove that imputation B, C, D and E were substantially true there would a complete defence if by reason of that proof imputation A did not cause any further harm to the plaintiff. There may be some attraction in this alternative interpretation. Apart from anything else, there is nothing in s 26 that suggests a sequence whereby it is to apply where s 25 does not apply.

Absolute privilege [3.720] In some cases the law considers that the occasion upon which statements are made are such that the speaker should be wholly immune from suit for defamation. In such a case of “absolute privilege,” the privilege attaches not to the content or speaker but to the occasion. Under s 27 of the uniform defamation legislation 320 it is a defence if the defendant proves that the defamatory matter was published on an occasion of absolute privilege. It then proceeds to provide a non-exhaustive list of relevant occasions which includes proceedings of a Parliamentary body or of an Australian court or tribunal. The legislation also provides that absolute privilege applies to matter published on an occasion that if published in another Australian jurisdiction would be an occasion of absolute privilege in that jurisdiction. Accordingly, there is no doubt that statements made in, for example, a Queensland Parliament or court attract absolute privilege whether the plaintiff contemplates bringing a defamation action in Queensland or any other Australian jurisdiction. The legislation also allows for further occasions attracting absolute privilege to be included by a jurisdiction, if it so chooses, in Schedule 1 of its defamation statute. For example, New South Wales had done so by including a wide range of other matters within the ambit of absolute privilege. These include matters relating to offices such as those of the Ombudsman, the Privacy Commissioner and the Information Commissioner, and organisations such as the Law Reform Commission, the Independent Commission Against Corruption and the State Parole Authority, as well as matters arising under various statutes such as the Workers Compensation Acts, the Anti-Discrimination Act 1977 (NSW), the Legal Profession Act 2004 (NSW) and the Public Interest Disclosures Act 1994 (NSW). South Australia has extended absolute privilege to matter published by the Parole Board or by a registered victim of an offence for the purposes of a proceeding of the Parole Board. It should also be remembered that since common law defences have been preserved by the statutes, absolute privilege at common law which has not been caught by the statutes will still be applicable (or will now be applicable in the case of Queensland and Tasmania, which previously had codified regimes). Accordingly, absolute privilege will apply to defamatory statements made in the executive communications and communications between spouses. 320

ACT: s 137; NT: s 24; SA: s 25.

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Although absolute privilege is enjoyed by those who may become the subject of a story by the media, such as someone making a statement in parliament or court, generally the absolute privilege does not extend to the media. Instead, reports of parliamentary or judicial proceedings normally attract only qualified privilege. 321

Proceedings of parliamentary bodies [3.730] Immunity from any kind of suit was conferred upon members of the United Kingdom Parliament pursuant to Art 9 of the Bill of Rights 1689, which provided that “the freedom of speech or debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. This immunity has been re-enacted in Australia. 322 In the defamation sphere, the immunity has been reflected in the uniform defamation legislation, which provides absolute privilege for “proceedings of parliamentary bodies” including but not limited to Parliamentary debates or proceedings held by or under the authority of Parliament, which would include committee proceedings, documents published by order or authority of Parliament, and giving evidence, or presenting or submitting a document to a Parliamentary body. 323 Consequently no action will lie against a Member of Parliament for defamatory words spoken in the course of such proceedings. 324 There is no objection to Hansard being used as a record of history, for example, to show that a particular statement was made in Parliament at a particular time or referred to a particular person. 325 However, nothing said in the House can be used for the purpose of supporting a cause of action, as a means of proving the motives or intentions of a Member or rebutting a defence (for example, by proving malice), for statements made outside the House. 326 By contrast, where a Member repeats or adopts outside the House, perhaps in an interview with the media, statements he or she made inside Parliament, there is no

321

See [3.800]-[3.850].

322

See Parliamentary Privileges Act 1987 (Cth), s 16(1); Australian Capital Territory (Self-Government) Act 1988 (Cth), s 24(3) (applicable in ACT); Imperial Act Application Act 1969 (NSW), s 6; Legislative Assembly (Powers and Privileges) Act (NT), ss 4, 6; Parliament of Queensland Act 2001 (Qld), s 8; Constitution Act 1934 (SA), s 38; Constitution Act 1975 (Vic), s 19(1); Parliamentary Privileges Act 1891 (WA), s 1.

323

DA: s 27(2)(a); ACT: s 137(2)(a); NT: s 24(2)(a); SA: s 25(2)(a). Chenard & Co v Arissol [1949] AC 127 at 133-134. A person aggrieved by comments made concerning him or her under parliamentary privilege may be able to have a reply incorporated into the relevant Hansard under the Standing Orders of both Houses of Federal Parliament, both Houses of the New South Wales Parliament, and the Legislative Assemblies in the Australian Capital Territory, Queensland and Western Australia: see Gillooly (1998), p 152. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337 (PC). In Erglis v Buckley [2004] 2 Qd R 599 the Queensland Court of Appeal refused to strike out a claim based on a letter sent to a Minister later tabled in Parliament because parliamentary privilege was not being impugned. The defamation action was not against the Minister but against the authors of the letter, alleging that they should be liable for the Minister’s republication since they ought to have known that she would table the letter: see [3.450].

324

325

326

Church of Scientology of California v Johnson-Smith [1972] 1 QB 522; Mundey v Askin [1982] 2 NSWLR 369; Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Prebble v Television New Zealand Ltd [1995] 1 AC 321 (PC).

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privilege. 327 Where proceedings of the Commonwealth Parliament are concerned, this purportedly has been made plain by the Parliamentary Privileges Act 1987 (Cth), s 16(3) which states that it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing inferences or conclusions wholly or partly from anything forming part of those proceedings. 328 However, there has been debate over the validity of s 16(3). 329 In particular, a majority in Laurance v Katter, 330 a case involving a Member later “standing by” but not repeating the defamatory statements he made in parliament, held that the terms of s 16(3) go beyond Art 9 and therefore are either rendered void or must be read down because it is contrary to the implied Constitutional freedom of communication concerning government or political matters. 331 However, these interpretations were subsequently not followed in the South Australian case Rann v Olsen. 332 Similarly, an earlier South Australian case Wright & Advertiser Newspapers Ltd v Lewis held that since the primary value sought to be protected by parliamentary privilege was freedom of speech and deliberation in the Parliament, it did not preclude a defendant from alleging and proving the truth of statements made in Parliament where the maker of the statements was the person who initiated the proceedings. 333 However, this approach was rejected by the Privy Council, on appeal from New Zealand, on the grounds that the privilege protected by Art 9 is the privilege of Parliament itself. The actions of any individual member of Parliament, even if he or she has an individual privilege of his or her own, cannot determine whether or not the privilege of Parliament is to apply. The decision of an individual member cannot override the collective privilege of the House to be the sole judge of such matters. 334 The effect of this decision has been overridden by legislation in the United Kingdom, 335 but not in Australia. Wright & Advertiser Newspapers Ltd was also rejected by the South Australian Full Court in Rann v Olsen and in the Queensland Supreme Court in Flegg v Hallett. 336 327 328

Beitzel v Crabb [1992] 2 VR 121; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 35 per Prior J, cf 19 per Zelling ACJ; Jennings v Buchanan [2005] 2 NZLR 577 at [19] (PC). See also [4.110]. State and Territory legislation have similar provisions.

329 330 331

The following paragraphs only briefly address this issue. See [4.110]-[4.130] for a more detailed discussion. Laurance v Katter (1996) 141 ALR 447. See the judgments of Pincus JA and Davies JA. The High Court granted special leave to appeal the decision, but the appeal was discontinued.

332

Rann v Olsen (2000) 76 SASR 450 (plaintiff suing for allegation that he lied to Parliamentary Committee – court held that the statements were privileged).

333 334 335

Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. Defamation Act 1996 (UK), s 13 confers a statutory right on individual members of Parliament to waive the privilege. Flegg v Hallett [2014] QSC 278.

336

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At the heart of the debate over s 16(3) and similar provisions lies the paradox that in promoting freedom of speech in parliament, it may impose a limit on freedom of speech by other members of the community. In particular, the section may operate to restrict the freedom to discuss government or political matters which is impliedly guaranteed in the Constitution, particularly if the section exceeds the terms of Art 9. This will be the case whether the Member of Parliament is a plaintiff, trying to rely on something said in Parliament to, perhaps, prove the truth of a claim (as in Wright & Advertiser Newspaper) or a defendant, such as where he or she “stands by” defamatory statements he or she made in Parliament (as in Laurance v Katter). It would appear, therefore, that the precise bounds of the privilege, particularly as reflected in s 16(3), await final determination by the High Court. There is no suggestion that uniform defamation legislation has changed the law providing that parliamentary privilege also embraces the preparation and presentation of documents tabled in the House. 337 This includes collecting or assembling the documents or coming into possession of them. 338

Proceedings of courts or tribunals [3.740] The uniform defamation legislation affords absolute privilege to matter published in the course of the proceedings of an Australian court or tribunal, which are defined as including but not being limited to publication of matter in any document filed, lodged or otherwise submitted to the court or tribunal, in the course of giving evidence, or in any judgment, or other determination of the court or tribunal. 339 The proper and efficient administration of justice requires that statements made in the course of judicial proceedings be absolutely protected from suit for defamation. This privilege extends to judges, parties, counsel, witnesses and jurors. 340 Judges are entitled to the privilege even though their statements may be malicious or even irrelevant to the matter under consideration. However, the other participants are protected if their statements are malicious but only when their statements are relevant, since the making of an irrelevant statement may mean that the person was no longer acting in the character of a participant in judicial proceedings. 341 The public policy underpinning the immunity in cases of statements in judicial proceedings involves two considerations. First, it is necessary that those who are involved in litigation should be able to speak freely without fear of being exposed to a suit for defamation. Secondly, there is the desire to avoid interminable litigation which could result if the merits of a judgment were able to be re-examined by a trial of the testimony of the witness in a defamation suit against him or her. 342 337 338

Holding v Jennings [1979] VR 289. O’Chee v Rowley (1997) 150 ALR 199 (Qld CA).

339 340

DA: s 27(2)(b); ACT: s 137(2)(b); NT: s 24(2)(b); SA: s 25(2)(b). Cabassi v Vila (1940) 64 CLR 130; Royal Aquarium & Summer & Winter Garden Society v Parkinson [1892] 1 QB 431; More v Weaver [1928] 2 KB 520.

341 342

Seaman v Netherclift [1876] 2 CPD 53 at 57; Cabassi v Vila (1940) 64 CLR 130. Cabassi v Vila (1940) 64 CLR 130 at 139; Jamieson v The Queen (1993) 177 CLR 574 at 590.

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It would seem that the position of communications between a solicitor and a client has yet to be finally settled. There is no provision expressly covering solicitors and clients in the uniform defamation legislation. There is authority that statements made within such a relationship are covered by absolute privilege at common law. 343 However, this position may be open to review. 344 In any event, the substance of the communication must be relevant to the occasion on which advice is sought, as opposed to, for example, matter of a gossipy nature. 345 The privilege now expressly extends to tribunals. The section in the uniform defamation legislation refers to the relevant “proceedings” – whether of courts or tribunals – as including matters such as filing, lodging and submitting of documents including originating process, giving evidence and the publication of a judgment, or other determination. It would seem implicit, therefore, that in order to attract absolute privilege for its participants the tribunal must act in a manner similar to courts of justice. The overriding consideration is whether there will emerge from the proceedings a determination, the truth and justice of which is a matter of public concern. 346 A number of factors should also be relevant, 347 including: the authority under which the tribunal acts, a tribunal established by statute or other legal means attracting the privilege, whereas one established merely by, for example, the consent of the members of an association will not; 348 the question being considered by the tribunal being in the nature of an issue between parties rather than, for example, in the nature of a preliminary investigation; 349 the procedure adopted in carrying out proceedings, including the power to summon and examine witnesses; and the legal consequences of the conclusion that is reached by the tribunal as a result of the inquiry. Accordingly, it has in the past been held that absolute privilege extends to tribunals such as a military court, 350 disciplinary hearings against solicitors 351 and barristers, 352 and town planning inquiries. 353 By contrast, absolute privilege has been held to not extend to merely administrative inquiries such as an inquiry into the grant of a liquor or dance licence, 354 the report by an inspector of police to a superior officer concerning another officer 355 or any inquiry by the Attorney-General into the fitness for office of a magistrate. 356 Similar conclusions should apply under the uniform defamation legislation. 343 344 345

More v Weaver [1928] 2 KB 520 at 525-526. Minter v Priest [1930] AC 558. More v Weaver [1928] 2 KB 520 at 525.

346 347 348 349

Mann v O’Neill (1997) 191 CLR 204 at 212. Trapp v Mackie [1979] 1 WLR 377 (HL). Hope v I’Anson [1901] 18 TLR 201. O’Connor v Waldron [1935] AC 76 (PC).

350 351 352

Chatterton v Secretary of Capitalist State for India [1895] 2 QB 189. Addis v Crocker [1961] 1 QB 11; Hercules v Phease [1994] 2 VR 411. Lincoln v Daniels [1962] 1 QB 237.

353 354

Atkins v Mays [1974] 2 NZLR 459. Attwood v Chapman [1914] 3 KB 275 (liquour licence); Royal Aquarium and Summer & Winter Gardens Society v Parkinson [1892] 1 QB 431 (music and dance licence).

355 356

Gibbons v Duffell [1932] 47 CLR 520. Mann v O’Neill (1997) 191 CLR 204.

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A letter of complaint to a disciplinary board may be part of an established procedure which must be set in motion if disciplinary proceedings are to commence, and is therefore analogous to originating process before a court. Such a complaint would be absolutely privileged. 357 By contrast, a letter of complaint to the Attorney-General complaining about the ability of a public official to perform his or her public functions where there is no procedure for the handling or adjudicating of such complaints does not attract absolute privilege. 358 Even if the Attorney-General were the appropriate authority to investigate and prosecute complaints, there would still be no absolute privilege. The function of an authority charged with investigation and prosecution, whether in the courts or elsewhere, is not to ascertain the truth and justice of a matter in a binding way, but rather to determine whether institution of proceedings is warranted in the circumstances. Absolute privilege is not necessary for the proper discharge of that function. 359 Complaints to prosecuting authorities should enjoy only qualified privilege. 360 Since Royal Commissions are more investigatory than judicial in nature, at common law the participants in such proceedings do not enjoy absolute privilege. However, this position has been altered by legislation which provides that the Commissioner, counsel and witnesses before a commission of inquiry are to have the same protection as is accorded to participants in judicial proceedings. 361 The uniform defamation legislation should not have altered the position that the absolute privilege covers not only statements made in the course of the actual judicial or tribunal proceedings, but also communications preparatory to those proceedings including communications between parties and witnesses or legal advisers 362 and documents initiating proceedings which are sent to the appropriate authority. 363

Internal executive communications [3.750] At common law the freedom of speech protected by parliamentary privilege is supported by absolute protection for communications by some persons holding high executive office when fulfilling an official function. The privilege applies only to “high officers of State,” such as ministers of the Crown acting in an official capacity rather than public servants, and is premised on the need for government functions to be carried out in a fearless fashion without the risk of possible consequences in defamation. The privilege has been held to apply to a report by the High Commissioner for Australia in the United Kingdom to the Prime Minister of Australia, on the basis that as a representative of the Commonwealth the position was 357 358 359 360

Hercules v Phease [1994] 2 VR 411. Mann v O’Neill (1997) 191 CLR 204 at 215-216. Mann v O’Neill (1997) 191 CLR 204 at 216. Finn v Hunter (1886) 12 VLR 656.

361

Royal Commissions Act 1902 (Cth), s 7; Royal Commissions Act 1991 (ACT), 19; Royal Commissions Act 1923 (NSW), ss 6, 7(3); Inquiries Act (NT), ss 5, 15; Commissions of Inquiry Act 1950 (Qld), s 14B, 20; Royal Commissions Act 1917 (SA), s 16; Commissions of Inquiry Act 1995 (Tas), s 8; Evidence Act 1958 (Vic), s 21A; Royal Commissions Act 1968 (WA), ss 20, 31.

362 363

Watson v M’Ewan [1905] AC 480 (HL); Ronald v Harper [1913] VLR 311 (FC). Hercules v Phease [1994] 2 VR 411; Lincoln v Daniels [1962] 1 QB 237.

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analogous to the position of a government minister. 364 It would seem that the protection will extend to communications by the Cabinet Minister not only to a fellow minister, but also to an appropriate subordinate. 365 The privilege attaches to communications made in an official capacity, which may cover not only matters of safety and security of the community but also matters of commerce. 366 The privilege only protects internal communications which will by their nature have a limited audience. It does not extend to press releases or public statements of members of the executive government, although such may attract qualified privilege. 367

Communications between spouses [3.760] At common law communications between a husband and wife are protected by absolute privilege. The modern explanation for this protection may rest in a recognition of the confidential relationship between spouses so as to avoid results which are disastrous to social life. 368

Whistleblowers [3.770] Under legislation in some jurisdictions, absolute privilege against liability for defamation is expressly conferred upon whistleblowers, 369 while in others this protection may be implicit in the general immunity from liability. 370 In the Australian Capital Territory only, qualified privilege is conferred. 371

Qualified privilege [3.780] There are further occasions when the law recognises that a publisher has a reason for, or interest in, publishing which outweighs the right of the plaintiff to his or her unsullied reputation. Often it is the relationship between the parties that establishes the “occasion” of the publication as attracting the privilege to publish. 372 However, such a privilege may be regarded as “qualified” as opposed to “absolute” because it may be lost in certain circumstances. The nomenclature of “qualified privilege” may be broadly applied to the defences of publication of public documents, fair report of proceedings of public concern, statutory qualified privilege for publication of information, common law qualified privilege and 364 365 366 367

Isaacs v Cook [1925] 2 KB 391. Peerless Bakery v Watts [1955] NZLR 339 (Minister’s order to official of Wheat Board). Isaacs v Cook [1925] 2 KB 391 (fruit export); Peerless Bakery v Watts [1955] NZLR 399 (bread supply). See [3.870].

368 369

Wennhak v Morgan [1898] 20 QBD 635 at 639. Protected Disclosures Act 1994 (NSW), s 21; Protected Disclosure Act 2012 (Vic), s 41.

370

See Public Interest Disclosure Act 2010 (Qld), s 36; Whistleblowers Protection Act 1993 (SA), s 5; Public Interest Disclosures Act 2002 (Tas), s 16; Public Interest Disclosure Act 2003 (WA), s 13. Public Interest Disclosures Act 2012 (ACT), s 35. As opposed to, for example, an assessment of the plaintiff’s characteristics, as underlies the “public figure” defence operating in American defamation law: see M Chesterman, “Privileges and freedoms for defamatory political speech” (1997) 19 Adel LR 155 at 157.

371 372

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the extended qualified privilege for communications concerning political government matters. However, differences exist between these distinct defences, including these circumstances in which the defence may be lost.

Publication of public documents [3.790] Section 28 of the uniform defamation legislation 373 provides for a defence where the defamatory manner is contained in a public document, or a fair copy of, summary of or extract from, that document. For these purposes, “public document” means: • any report or paper published by Parliamentary body, or a record of votes, debates or other proceedings published by or under the authority of the Parliamentary body; • any judgment, order or determination of a court or arbitral tribunal of any country in civil proceedings, including any record or report of the court or tribunal relating to the judgment, order or determination and reasons; • any report or other document that under the law of any country is (i) authorised to be published, or (ii) required to be presented, or submitted to, tabled in or laid before a Parliamentary body; • any document issued for the information of the public by a government, including a local government, or government officer, employee or agency. Presumably this will not apply to mere propaganda released by an official on behalf of a Minister. 374 • any record or other document open to inspection by the public that is kept by an Australian jurisdiction, a statutory authority of an Australian jurisdiction, an Australian court or under legislation of an Australian jurisdiction; • any other document issued, kept or published by person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of law of the jurisdiction. 375 Jurisdictions also have the option to specify other documents covered by the privilege in Schedule 2 to the legislation. As at the time of writing no jurisdiction had exercised its option. For these purposes a “fair” copy, summary or extract would be one which contains no embellishment by the publisher. 376 In the case of, for example, a document issued to the information of the public, the document such as a notice or report must be republished without alteration or addition. There may be no protection if the notice or report is used as the basis for a media report which adds to or varies the notice or report. 377 373

374 375 376 377

ACT: s 138; NT: s 25; SA: s 26. Mere failure to comply with formal requirements regarding content or layout, or time limits for preparation, presentation, submission or tabling is not sufficient to prevent a document from being regarded as a public document: subs (2). Forster v Watson (1944) 44 SR (NSW) 399; see also Hanrahan v Ainsworth (1990) 22 NSWLR 73; Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263. DA: s 28(4); ACT: s 138(4); NT: s 25(4); SA: s 26(4). See further [3.800] regarding the meaning of “fair” in relation to “fair reports”. Campbell v Associated Newspapers Ltd (1948) 48 SR (NSW) 301; John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477; Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 at 215.

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The defence provided by this section is not absolute, but may be defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

Fair report of proceedings of public concern [3.800] The basis for the protection provided for fair reports of proceedings of public concern by qualified privilege is that the advantage of publicity to the community and keeping the public informed outweighs any private injury resulting from the publication. 378 This then is a defence of no small significance for the media.

Common law [3.810] At common law, the absolute privilege enjoyed by those who make statements in parliament and judicial proceedings is supplemented by a qualified privilege for “fair and accurate” reports of those proceedings 379 although in the case of reports of proceedings in courts in other jurisdictions the privilege only applies if proceedings are of worldwide importance or if they have a special connection with affairs in the jurisdictions in which the report is published. 380 The privilege was previously enacted by legislation in all Australian jurisdictions, although differences existed in the statutes. The uniform defamation legislation has removed these differences and clarified this defence.

Uniform defamation legislation [3.820] Section 29 of the uniform defamation legislation 381 provides a defence of fair report of proceedings of public concern. There is also a defence if the defendant can show that the matter was contained in an earlier published report of proceedings of public concern, that the matter was contained in a fair copy, summary or extract of the earlier published report and that he or she had no knowledge that would reasonably make him or her aware that the earlier published report was not fair. For these purposes “proceedings of public concern” is defined as meaning any of the following: • Any proceedings in public of a Parliamentary body. 382 • Any proceedings in public of an international organisation of any country or the government of any country. • Any proceedings in public of an international conference at which the governments of any countries are represented. • Any proceedings in public of the International Court of Justice or any other judicial or arbitral tribunal for the decision of any matter in dispute between nations, or any other international judicial or arbitral tribunal. 378 379 380

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 536; Wason v Walter (1868) LR 4 QB 73 at 88. Wason v Walter (1868) LR 4 QB 73. Webb v Times Publishing Co Ltd [1960] 2 QB 535 at 563-570.

381 382

ACT: s 139; NT: s 26; SA: s 27. See further Peters v Television New Zealand (TVNZ) [2012] 2 NZLR 466.

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• Any proceedings in public of a court or arbitral tribunal of any country. Accordingly, the defence will not apply to proceedings which have been closed to the public or where publication has been prohibited by the court. 383 Further, the privilege only protects publication of statements forming part of the proceedings. 384 While it would extend as far as an application to be heard from a non-party who is present in the court room, regardless of whether it is successful or not, it would not include, for example, an interjection shouted by a bystander to the case who had not been sworn as a witness and who was making no application to the court. Such intervention would be wholly irrelevant to the proceedings. 385 If, however, statements are made in the course of proceedings it does not matter that they were irrelevant to the issues being litigated in those proceedings. 386 • Any proceedings in public of an inquiry held under the law of any country or other the authority of the government of any country. This will include the public hearings of a Royal Commission. 387 • Any proceedings in public of a local government body of any Australian jurisdiction. • Proceedings of a learning society or of a committee or governing body of the society but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the society or a person subject by contract or otherwise by law to control by the society. A “learned society” is defined as a society whose objects include the advancement of any art, science or religion or the advancement of learning in any field, and which is authorised by its constitution to exercise control or to adjudicate over matters connected with those of objects and to make findings or decisions having effect by law or custom in any part of Australia. • Proceedings of a sport or recreation association, or of a committee or governing body of the association but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the association or a person subject by contract or otherwise by law to control by the association. A “sport or recreation association” is defined as an association whose objects include the promotion of any game, sport, or pastime to which the public is admitted as spectators or otherwise, and the promotion or protection of the interests of people connected with the game, sport or pastime; and which is authorised by its constitution to exercise control or to adjudicate over matters connected with the game, sport or pastime and to make findings or decisions having effect by law or custom in any part of Australia. 383

See [5.60], [5.150].

384

385

Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244-245 (reported words not made by a person while he was a witness in the witness box but rather words shouted out by him from the body of the court after his examination had been concluded – report held privileged); Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341 (comments by magistrate after delivering verdict part of the proceedings (per Gibbs J)); cf Delegal v Highley (1837) 3 Bing NC 950; 132 ER 677 at 961 (Bing NC), 681 (ER) (interjection by a bystander); Hughes v West Australian Newspapers Ltd (1940) 43 WALR 12 (outburst after the proceedings had been closed). Cf Farmer v Hyde [1937] 1 KB 728.

386 387

Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145. See also Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.

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• Proceedings of a trade association, or of a committee or governing body of the association but only to the extent that the proceedings relate to a decision or adjudication made in Australia about a member or members of the association or a person subject by contract or otherwise by law to control by the association. A “trade association” is defined as an association whose objects include the promotion of any calling (that is, a trade, business, industry or profession) and the promotion or protection of the interests of people engaged in any calling; and which is authorised by its constitution to exercise control or to adjudicate over matters connected with a calling or the conduct of people engaged in the calling and to make findings or decisions having effect by law or custom in any part of Australia. This would include the proceedings of a medical disciplinary tribunal. 388 • Any proceedings of a public meeting (with or without restriction on the people attending) of shareholders of a public company under the Corporations Act 2001 (Cth) held anywhere in Australia. • Any proceedings of a public meeting (with or without restriction on the people attending) held anywhere in Australia if the proceedings relate to a matter of public interest, including the advocacy or candidature of a person for public office. • Any proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman. • Any proceedings in public of a law reform body of any country. • Any other proceedings adapted by, or proceedings of, a person, body or organisation of another Australian jurisdiction that are treated in that jurisdiction as proceedings of public concern under a provision not of a law of the jurisdiction. Jurisdictions also have the ability to nominate further proceedings in Schedule 3. As at the time of writing no jurisdiction had exercised this right.

Meaning of “fair” [3.830] Section 29 of the uniform defamation legislation 389 contains no definition of “fair”, and it is not immediately clear whether there is an intention that it bear a different meaning from “fair and accurate” at common law. There is no reason to suppose that the Standing Committee of Attorneys-General proposed that privilege should be afforded to inaccurate reports. A more likely explanation is that the quality of accuracy is to be seen as an attribute of a fair report, so that “fair and accurate” is a tautology. In order for a report to be “fair” it must not be slanted or distorted. The question of fairness is one of fact. 390 Although it is permissible to summarise any part of the proceedings which may be of particular interest to the public, such a summary will be privileged only if made fairly and honestly with the intention of conveying to the viewer or reader the impression which the 388 389

See also Allbutt v General Council of Medical Education and Registration (1889) 23 QBD 400 at 409-410. ACT: s 139; NT: s 26; SA: s 27.

390

Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540.

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proceedings themselves would have made. 391 This will be particularly demanding for journalists reporting complex and perhaps contradictory evidence: great care will need to be taken to ensure that the full scope of the evidence is represented and misleading (and possibly defamatory) impressions are not created. 392 In the case of a report of judicial proceedings, direct attribution of a judgment is not required provided it is clear on the face of the report that it is of a decision or judgment given in court. 393 Substantial accuracy is sufficient, provided the report does not give a misleading impression of what was said or done in the proceedings. 394 The report must be regarded from the standpoint of persons whose function it is to give the public a fair account of what had taken place in the proceedings: it would be wrong to judge a report likely to have been compiled and published under conditions of urgency by the exact standard of accuracy which would be expected in a report purporting to come from, for example, the hand of a trained lawyer. 395 Particular attention may be given to headlines and graphics which, by definition, have the object of capturing maximum public attention. 396 In a high pace society, such eye-catching matter will for many be the entirety of what is perceived or at least remembered: it would be a fiction to suggest that the scrutiny applied to a scholarly book will also be applied to the mass media. 397 The question is not whether it is fair or unfair to any particular person: the question is whether it substantially records what was said and done. 398 If the report is fair in the sense of reporting with substantial accuracy what in fact was said and done in the proceedings then it matters not if those statements so reported are themselves factually untrue. 399 If the statements made in the course of the proceedings were in fact false, they were nevertheless made and those present at the proceedings heard them: a fair report which includes those false statements does no more than inform the public of what they would have heard had they been present. 400

Meaning of “report” [3.840] A “report” is essentially descriptive and is limited to an account of events which have happened. It cannot properly include the independent comments, opinions or gloss of the 391 392 393

394

395 396 397 398 399 400

Cook v Alexander [1974] 1 QB 279 at 288. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [112] (sufficient that the subject matter was plainly a judgment handed down by Hill J of the Federal Court on the preceding day, together with references such as “test case” and “landmark ruling”). James v John Fairfax & Sons Ltd (1986) 4 NSWLR 466; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; MacDougall v Knight (1890) 25 QBD 1 at 7; Nationwide News Pty Ltd v Rogers [2002] NSWCA 71 at [113]. Hope v Sir WC Leng and Co (Sheffield Telegraph) Ltd (1907) 23 TLR 243 at 244; (1971) 125 CLR 332. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 575 per Kirby J. Farquhar v Bottom [1980] 2 NSWLR 380 at 386. Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 383. Hutchison v Robinson (1900) 21 LR (NSW) 130 at 145; MacDougall v Knight (1886) 17 QBD 636 at 640; Cook v Alexander [1974] QB 279 at 288. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.

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reporter. 401 The publication must clearly be a report: if the reporter takes information from the proceedings and presents it as his or her own then there will be no privilege. 402 In addition, misleading headlines or hyperbolic commentary may in particular circumstances lose the privilege. 403

Defeating the defence [3.850] The defence for publication of a fair report of proceedings of public concern, including publication from an earlier published report, is qualified because it may be defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education. 404 A similar wording appeared in the previous Australian Capital Territory counterpart section. As with that provision, precisely how an ordinary member of the public who has been defamed might obtain the evidence needed to show that a large media organisation, or even one or several of its employees, did not honestly publish the material for the information may be a matter for conjecture. Presumably the plaintiff will be entitled to rely on inferences from the available evidence.

Common law qualified privilege: interest or legal, moral or social duty and reciprocal interest Generally [3.860] At common law a publisher has privilege where he or she has an interest or legal, moral or social duty to publish the material, despite its defamatory content, to a recipient who has a reciprocal interest in receiving it. 405 It has been said that cases of qualified privilege exist for “the common convenience and welfare of society”. 406 The categories of common law qualified privilege cannot be precisely stated and are not regarded as closed. 407 Nevertheless, no distinction is drawn between one class of privileged communications and another, and precisely the same considerations apply to all cases of qualified privilege. 408 Where the case is being tried before a jury, the question whether an occasion is privileged if the facts are not in dispute is a question of law only, for the judge not for the jury. If there

401 402 403

Burchett v Kane [1980] 2 NSWLR 266(n) at 273 per Samuels JA. Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 50. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 per Kirby J.

404 405

DA: s 29(3); ACT: s 139(3); NT: s 26(3); SA: s 27(3). Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1049; Adam v Ward [1917] AC 309 at 334; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510. Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050. London Association for the Protection of Trade v Greenslands Ltd [1916] 2 AC 15; Perera v Peiris [1949] AC 1. Jenoure v Delmege [1891] AC 73 at 78.

406 407 408

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are questions of fact in dispute upon which this question depends they are left to the jury, but when the jury has determined the facts it is for the judge to say whether they constitute a privileged occasion. 409 Rarely will the media have an interest or duty to publish something, which the general public will all have a reciprocal interest in receiving. 410 “Interest” for these purposes has the narrow meaning of an interest material to the affairs of the recipient of the information such as would, for instance, assist in the making of an important decision or the determining of a particular course of action. 411 The interest cannot be based on mere curiosity, news or gossip. 412 For the most part, therefore, the defence only applies in situations where there is a publication to a limited audience. The defence includes within its ambit a publication for the protection of the interest of the recipient, analogous to the defence of another to a physical assault. The case of a response by a journalist to a complaint made against him or her to the Australian Press Council which is conveyed to both the journalist’s employer and to the APC itself is a clear example of a person with both an interest to protect and a duty to respond, with both recipients having a reciprocal interest in receiving the communication. 413 Another manifestation of the defence occurs where there is community of interest between the publisher and the recipient, in other words there is not only a reciprocity of interest but indeed a commonality of interest, such as where statements are made by one creditor to another creditor about their debtor. 414 Generally speaking, therefore, the requirement of reciprocity in duty and interest means that common law qualified privilege provides little protection to the media.

Exceptions [3.870] Only in certain exceptional cases will a defamatory publication made to the general public emanating from neither an official nor quasi-official sources attract qualified privilege. Most of the cases in which the defendant’s claim have succeeded involved publications of material from a person or body connected with government, or with some institution having responsibility for the administration of an aspect of community affairs. In other words, the nature of the source is the best practical guide to the likely result, at least where the material is published at large. 415 Importantly for the media, a defamatory publication does not attract qualified privilege merely because it deals with a matter of public interest. 416

409 410 411 412 413 414 415 416

Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 509; Adam v Ward [1917] AC 309 at 318. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 at 87; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC). Barrow v Bolt [2013] VSC 599 at [19]. See, for example, Barrow v Bolt [2013] VSC 599 not disturbed on appeal Barrow v Bolt [2015] VSCA 107. See, for example, Spill v Maule (1869) LR 4 Ex 232. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 593 per Pincus J. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749.

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Retort [3.880] One such exceptional case is that the defence of qualified privilege extends to a person who has been publicly defamed to freely to submit his or her answer, whether it be strictly defensive or by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. 417 For the privilege to attach the reply, or “retort”, must be sufficiently connected with the content of the attack, go to the credibility of the attack, or to the credibility of the person making that attack. 418 A reply or retort to a defamatory attack is equivalent to self-defence against a physical assault. 419 Like self-defence at criminal law, the response must be proportionate to the attack both in terms of content and the persons to whom it is addressed: the response must not go beyond defence to offence. 420 Accordingly, to the extent that the retort is not commensurate with the attack and is in the nature of fresh and distinct defamatory allegations, the qualified privilege will extend only so far as those portions of the defamation which would have been within its protection if they had stood alone and constituted the entire defamation, the irrelevant matter not being privileged at all 421 and furnishing possible evidence that the relevant portion was published with actual malice. 422 Further, if the attack is only to a small audience, the response must be equally limited, but if the plaintiff chooses a wide public forum such as parliament 423 or the media 424 for publicity of the attack, he or she cannot complain if the defendant uses the media as a medium for retort. 425

417

418

419 420

421 422 423 424 425

Norton v Hoare (No 1) (1913) 17 CLR 310; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Penton v Calwell (1945) 70 CLR 219. It is immaterial whether the attack has been previously published (as in Norton and Penton) or if the attack and retort are in the same publication (as in Loveday). Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31 at [35] (Radio 2GB announcer responded to accusations by the plaintiff at a peace rally that the station engaged in “tabloid journalism” that incited the Cronulla riots by directing attention to the credibility of the plaintiff, imputing hypocrisy to the him as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter). Norton v Hoare (No 1) (1913) 17 CLR 310 at 318; Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 470; Mowlds v Fergusson (1946) 64 CLR 206. See, for example, Harding v Essey (2005) 30 WAR 1 (defence denied where in reply to defamatory statements in newsletters distributed to 178 outlets the defendant forward a defamatory letter in retort to 1,000 outlets); Madden v Seafolly Pty Ltd [2014] FCAFC 30. As Fleming (9th ed, 1998), p 625 said of the retort: “The privilege is a shield, not a sword.” See, for example, Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. Adam v Ward [1917] AC 309 at 340; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. Penton v Calwell (1945) 70 CLR 219; Adam v Ward [1917] AC 309. See, for example, Loveday v Sun Newspapers Ltd (1937) 59 CLR 503; Kennett v Farmer [1988] VR 991. Norton v Hoare (No 1) (1913) 17 CLR 310 at 318; Adam v Ward [1917] AC 309 at 324; Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 512.

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The interest being vindicated need not be the defendant’s own reputation. The defendant may be seeking to defend the reputation of a family member 426 or his or her employer or co-worker. 427 However, no privilege attaches where the defendant responds on behalf of a group or section of a community of which he or she is a member, and which has been the subject of a defamatory attack. 428 Example

Penton v Calwell [3.890] Penton v Calwell (1945) 70 CLR 219 For some years there had been an ongoing feud between the plaintiff, who was at the time a Federal Minister of State, and the defendant who was the editor of the Daily Telegraph newspaper and the publisher of that newspaper. In the course of that feud the plaintiff attacked the defendant, the Daily Telegraph and the metropolitan daily press in the Commonwealth Parliament under the protection of parliamentary privilege. The defendant wrote an article which accused the plaintiff of being a habitual liar and challenged him to abandon his privilege and to fight the controversy out in the courts. The plaintiff sued, alleging that the article was defamatory. The defendant pleaded qualified privilege on the basis that the words complained of were published in retort to attacks made by the plaintiff (1) upon the defendant as an individual (2) upon the defendant as editor of the Daily Telegraph (3) upon the company which owned that newspaper and (4) upon newspapers published and circulated within the Commonwealth. The High Court held that as the attacks had been made in Parliament and thus reached the widest possible audience, the use of the public press for the purpose of reply could not be regarded as involving any abuse of the privileged occasion created by the plaintiff’s attacks. The defendant was entitled to defend himself against the attacks by the plaintiff upon him as a person and as a journalist. He also had a personal interest which entitled him to protect the reputation of the company. However, the defendant had no relevant interest to protect in relation to the attacks upon the metropolitan daily press in general.

[3.900] If the words used by a defendant are capable of being construed as a retort to a defamatory attack, a jury may find that they were used in self-defence, whether or not they were combined with a challenge to sue. A challenge to sue is a challenge to fight out in the

426

Bowen-Rowlands v Argus Press Ltd (1926) The Times, 10 February; (1926) The Times, 26 March (defendant writing letter to newspaper attempting to vindicate her father’s memory against accusation made in a book repeated in a different newspaper), cited by Dixon J in Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 519-520.

427 428

Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [108]. Penton v Calwell (1945) 70 CLR 219 at 243; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519.

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courts the relevant issue – the defamation of the plaintiff by the defendant. A willingness to be sued or an anxiety to be sued indicated by such a challenge has no effect in limiting the defences open to the defendant. 429 While a retort to a defamatory attack attracts qualified privilege, that privilege does not extend to protect a riposte, that is a reply, to the retort. 430 Example

Kennett v Farmer [3.910] Kennett v Farmer [1988] VR 991 The defendant, a political correspondent and journalist, wrote an article in the Bulletin magazine which alleged that the plaintiff, who was at the time the leader of the Opposition in the Victorian Parliament, had told him that he would block Supply to the Government. The politician then appeared on radio and television programmes and denied that he had ever told the journalist that he would block Supply and that if the journalist insisted that he had said so, he was not telling the truth. The journalist, in riposte, also appeared on radio and television programmes to say that what the politician was now saying was not what he had originally told him and that the politician was either telling an untruth on the radio and television programmes or had told him an untruth at an earlier time. The journalist claimed that it was he who was attacked by the politician in the course of the politician responding to the original Bulletin article and that in turn all the journalist was doing was exercising his right of self-defence. It was held that while a retort to a defamatory statement, such as the original Bulletin article, may attract qualified privilege, that privilege does not extend to a riposte to the retort. Accordingly, privilege attached to the politician’s appearances on radio and television but not the journalist’s appearances on radio and television.

[3.920] The rule that qualified privilege attaches to a retort to a defamatory attack, 431 but not to a riposte to the retort may at first glance seem incongruous but may be supported on a number of grounds, including a need to encourage an end to defamatory exchanges, particularly in a climate in which editors or executive producers may not deem future rejoinders to be newsworthy. 432 Usually the media organisation itself will not have been the subject of a defamatory attack, but will merely be the means of communicating the retort. However, in order to ensure the effectiveness of any retort made via the media, there is a derivative qualified privilege which

429 430

Penton v Calwell (1945) 70 CLR 219 at 245. Kennett v Farmer [1988] VR 991 at 1003-1004.

431 432

See further Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31. See Kennett v Farmer [1988] VR 991 at 1003-1004.

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extends to protect any media organisation that published the retort. 433 However, the protection does not extend to gratuitous comments made by a journalist interviewing the person who is the subject of the original attack. 434 Corrections [3.930] A second exceptional case where the common law of qualified privilege may protect a media defendant occurs where the media publishes a correction to previously published information. 435 Public warnings [3.940] A third exceptional instance of common law qualified privilege that may offer protection for the media involves publication of public warnings against public threats such as a suspected terrorist attack or contaminated food 436 (although to the extent that that warning originates from the government this defence has already been discussed above in relation to protected reports). Example

Camporese v Parton [3.950] Camporese v Parton (1983) 150 DLR (3d) 208 The defendant newspaper journalist, reporting on matters of interest to consumers, wrote an article alleging that the plaintiff was selling canning lids that he knew were defective in that they could cause death due to formation of a deadly toxin. In fact, while the lids were defective, their use was unlikely to lead to formation of toxin. Although the journalist honestly believed what she had written, her research into the possibility of formation of toxin was inadequate. The Supreme Court of British Columbia held that the defendant was protected by qualified privilege. A matter of possibly deadly contamination of food was of vital concern to the general public. Accordingly, the defendant had a duty to communicate the matter to the public, and as there had been no express malice, had a good defence.

Malice [3.960] Unlike the protection offered by absolute privilege, that offered by qualified privilege may be lost in some cases. This will occur where the plaintiff can prove that the defendant used the occasion for an improper purpose. Where there is a purpose or motive that is foreign 433 434 435 436

Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 at 514; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 461; Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251. Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 461. Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961. Camporese v Parton (1983) 150 DLR (3d) 208; Blackshaw v Lord [1984] QB 1; cf Bowin Designs Pty Ltd v Australian Consumers Association (unreported, Federal Court, Lindgren J, 6 December 1996) (consumer magazine warning public about alleged dangerous gas heaters held to attract qualified privilege).

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to the occasion and which actuates the making of the statement, there is said to be “express malice” or simply “malice”. 437 Moreover, when determining whether there has been malice, the plaintiff must show not only that there was an improper motive but that it was the dominant reason for the publication. 438 Mere proof of the defendant’s lack of belief in the truth, recklessness, ill-will, prejudice, bias, or other improper motive is not sufficient to establish malice. Instead, the plaintiff must show some ground for concluding that the lack of belief in the truth, recklessness, ill-will, prejudice, bias, or other motive existed on the privileged occasion and actuated the publication. 439 By contrast, in the special case where there is knowledge of falsity, proof of such knowledge is “almost invariably conclusive evidence” of an improper motive, except where the defendant is under a legal duty to publish the defamatory material, without endorsement. 440 Where there is recklessness which is so gross as to amount to wilful blindness, this may be treated as the equivalent of knowledge of falsity and justify a finding of malice. However, recklessness of a lesser kind may need to be combined with other factors, such as unreasoned prejudice on the part of the defendant, to present cogent evidence of improper motive and therefore abuse of the occasion. 441 By contrast, mere carelessness of expression or in making a defamatory statement never provides a basis for inferring malice: the defendant is required to use the occasion honestly, not carefully. 442 Ill-will may be inferred from the extravagancy of the allegation and the language in which it is expressed, 443 although some liberty is afforded in the case of a retort to a defamatory attack since a measure of resentment and antagonism is likely to be an incident of the occasion. 444 Malice may also be inferred where the publisher introduces into the publication matter that is wholly or substantially unconnected with the occasion giving rise to the privilege. 445 For example, the privilege may be lost in the case of a retort to a defamatory attack where the reply goes far beyond a mere response to the initial attack and becomes instead a counter-attack which raises unrelated imputations against the plaintiff. 446 An improper motive may also be inferred where the manner or extent of the exercise of the privilege exceeds what is reasonable for the occasion. Ordinarily it will not be reasonable to

437 438 439 440 441 442 443 444 445 446

Roberts v Bass (2002) 212 CLR 1 at 179. “Implied malice”, by contrast, is a term sometimes used at common law to denote a false and defamatory statement. Roberts v Bass (2002) 212 CLR 1 at 41. See also Horrocks v Lowe [1975] AC 135 at 149. Roberts v Bass (2002) 212 CLR 1 at 31 per Gaudron, McHugh and Gummow JJ. See also Gleeson CJ at 166. Roberts v Bass (2002) 212 CLR 1 at 32. Roberts v Bass (2002) 212 CLR 1. Roberts v Bass (2002) 212 CLR 1 at 41. Calwell v Ipec Australia Ltd (1975) 135 CLR 321. Muller v Hatton [1952] St R Qd 150. Adam v Ward [1917] AC 309 at 318; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. News Media Ownership Ltd v Finlay [1970] NZLR 1089.

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resort to the media for communicating privileged information, although it has been seen that a person who is attacked in the media may legitimately retort to the attack to the same wide audience. 447 Improper motive has been found where there was a desire to publish a sensational story in order to enhance the reputation of a magazine and the author of the articles in question and to increase the circulation of the magazine, even in the absence of any particular desire to injure the plaintiff. 448 It was noted above that a publisher’s knowledge of falsity is “almost conclusive evidence” of an improper purpose, which will defeat qualified privilege. There may, therefore, be an exceptional case where the urgency in communicating a warning is so great or the source of the information is so reliable that the truth is not a matter that concerns the defendant and the publication of suspicion or speculation is justified. It has been suggested that an example would be where there is danger to the public from a suspected terrorist attack or the distribution of contaminated food or drugs. 449 As has been seen, such a situation is likely to attract protection for the media by reason of the interests of the public at large to be informed. Normally the malice of one participant in the defamatory publication cannot be imputed to another person. Thus, where liability is shared because the publication is jointly made, for example by partners or members of a committee, the malice of one defendant will not defeat the claim to privilege by the others. 450 However, if an employee in the course of employment is actuated by malice when publishing material, his or her employer will be imputed with that malice and will lose the protection of the privilege. 451 A media organisation may lose its derivative qualified privilege when it knows that its joint publisher has been actuated by malice and therefore lost his or her primary privilege. 452 Thus, if a television station presents a programme knowing that statements made by a participant in the programme are untrue or slanted to create an injurious impression which is known to be erroneous, it would be an abuse of the occasion by the television station. 453

447 448 449

Adam v Ward [1917] AC 309; Penton v Calwell (1945) 70 CLR 219. Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [250]. Blackshaw v Lord [1984] QB 1 at 27. Note, however, that in Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [122] Handley JA took a narrow interpretation of “exceptional cases” and saw no justification for publication of statements about terrorists or contaminated food or drugs when the publisher knows the statements to be false. It might still be possible to conceive of a situation where the public benefits from a false warning, such as where a false warning about a specific terrorist threat leads to greater alertness that discourages or even foils subsequent terrorist action. Contrast the broader interpretation of the “exceptional cases” adopted by Spigelman CJ (in dissent) at [29] which includes a third party publishing a retort to a defamatory attack. Wood CJ in CL at [168] supported the Blackshaw examples.

450

Egger v Lord Chelmsford [1965] 1 QB 248. Webb v Bloch (1928) 41 CLR 331. Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [114], [165]. Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510 at 544 approved in Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 at [113]-[114]. See also [166].

451 452 453

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Extension of qualified privilege in cases of political communication 454 Implied constitutional protection [3.970] It has been seen that a limitation on the common law defence of qualified privilege is the requirement of reciprocity of interest, which only in exceptional cases has been recognised in the case of publications to the general public. Prima facie, therefore, common law qualified privilege is not an appropriate defence for a person who mistakenly but honestly publishes government or political matter to a large audience. 455 For example, it has been held that election speeches made to large audiences of unidentified persons are not necessarily privileged even if the speeches deal with matters of general interest to the electors. 456 Against this backdrop, the High Court in two decisions in 1994 457 held that a right to freedom of speech concerning political matters could be implied into the Commonwealth Constitution and provided a good defence to an action for defamation. 458 However, as discussed in Chapter 2, 459 the Court was sharply divided in relation to the legitimacy of implying rights into the Australian Constitution. Any uncertainty was to be removed by a subsequent unanimous joint judgment of the Court in Lange v Australian Broadcasting Corporation (ABC), 460 which managed to confirm an extended common law defence of qualified privilege related to political communication justified by reference to an implied constitutional freedom of communication but without needing to resort to the implication of personal rights into the Constitution. 461 The Court in Lange v Australian Broadcasting Corporation held that prima facie the existing rules of defamation, at least in those jurisdictions that applied the common law, failed to be appropriate and adapted to serve the system of government prescribed by the Australian Constitution 462 because they arguably provided no appropriate defence for a person who mistakenly but honestly published government or political matter to a large audience. 463 Yet the “common convenience and welfare of society” 464 required the people to be able to 454

In Chesterman (1997) 19 Adel LR 155 there is a useful discussion of this topic, which includes argument regarding the degree of conformity between this and other privilege and fair comment defences.

455 456

See [3.860]. Lange v Willis (1934) 52 CLR 637; see also Duncombe v Daniell (1837) 3 Car & P 223; 173 ER 470.

457

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

458

These decisions developed the notion of a right to free speech implied into the Constitution first recognised in a non-defamation context in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106. See [2.90].

459 460 461

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. See also A Stone, “Freedom of political communication, the Constitution and the common law” (1998) 26 Fed LR 219.

462

In particular, sections such as ss 7 and 24 (senators and members of the House of Representatives “directly chosen by the people”) and 128 (amendment of Constitution requires a referendum) prescribe a system of representative and responsible government for the Commonwealth.

463 464

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569-570. Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050.

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communicate with each other with respect to matters which could affect their choice in federal elections or constitutional referenda or which could throw light on and assist in their evaluation of the performance of federal ministers and the conduct of the executive branch of government. 465 As McHugh J once explained: With the increasing integration of the social, economic and political life of Australia it is difficult to contend that the exercise or failure to exercise public functions or powers at any level of government or administration, or in any part of the country, is not of relevant interest to the public of Australia generally. 466

Accordingly, the court was prepared to declare that each member of the Australian community had an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affected the people of Australia and that the common convenience and welfare of the Australian society were advanced by discussion – the giving and receiving of information – about government and political matters. The interest that each member of the Australian community had in such a discussion therefore warranted an extension of common law qualified privilege to protect a communication made to the public on a government or political matter. 467

Elements of the defence [3.980] The parameters of this extension of common law qualified privilege might be summarised as follows: The communication must be about government or political matters [3.990] It was suggested in Lange v Australian Broadcasting Corporation that it embraced discussion of government or politics at not only a federal level but also a State or Territory level, and even at a local government level, whether or not it bore directly on matters at a federal level. Discussion of matters at State, Territory or local level might well bear upon the people’s evaluation of the performance of federal ministers or their departments and the choice that they have to make in federal elections or constitutional referenda. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia made that conclusion “inevitable”. 468 While the publication must concern government or political matters,

465 466 467 468

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. In ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Callinan J expressed a desire to revisit Lange, a suggestion dismissed by Kirby J. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571-572.

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it is not necessary for the plaintiff to be a politician or other type of public figure: the High Court did not establish a “public figure” style defence akin to that applicable in the United States. 469 Moreover, it was recognised that in some respects the extended qualified privilege could go beyond what was required for the law of defamation to be compatible with the freedom of communication required by the Constitution. For example, discussion of matters concerning the United Nations or other countries could be protected by the extended defence of qualified privilege even if those discussions could not affect the choice of electors at federal elections or in amending the Constitution, or could not throw light on the administration of federal government. Thus, it was held that by reason of matters of geography, history and constitutional and trading arrangements, the discussion of matters concerning New Zealand (as in this case) may often affect or throw light on government or political matters in Australia. 470 The meaning of the expression “communication about a government or political matter” is imprecise. 471 A publication might concern a matter of public interest but not qualify as a government and political matter. 472 When determining the character of the publication a relevant factor will be the nature of the discussion, rather than the office or function of the person making the publication. 473 There is support 474 for the view that nothing said in Lange v Australian Broadcasting Corporation derogates from those matters identified in Theophanous v Herald & Weekly Times Ltd as included within the scope of a “political discussion”. It was said in Theophanous that “political discussion” extended to “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”. 475 However, Heerey J in the Rabelais case argued that Lange confined the scope of “political discussion” to matters concerning the system of representative and responsible government, but only to the extent that the text and structure of the Constitution establish it 476 and there is growing support for the view that the reasoning in Lange did not 469

470 471 472 473 474 475 476

As per New York Times v Sullivan 376 US 254 (1964): see Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1180], [1184]. See also S Walker, “Lange v ABC: the High Court rethinks ’Constitutionalisation’ of defamation law” (1998) 6 TLJ 9 at 17; TEF Hughes, “Defaming public figures” (1985) 59 ALJ 482. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [27] per Gleeson CJ and Heydon J. Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [16]. Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 458, See, for example, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 80 per French J. See also Walker (1998) 6 TLJ 9 at 18. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124, adopting a statement by E Barendt, Freedom of Speech (1985), p 152. Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 86; see also Chesterman (1997) 19 Adel LR 155 at 161-162. Cf the limitation of the expanded defence to matters of and concerning serving politicians or political candidates by Mildren J in Hart v Wrenn (1995) 5 NTLR 17; 124 FLR 135 at 137 (FLR), criticised as being too narrow in Walker (1998) 6 TLJ 9 at 19.

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equate government or political matters with matters of public interest. 477 For the time being, whether something is a “government or political matter” falls to be determined on a case by case basis. However, the phrase would seem to embrace discussion concerning: the conduct or fitness for office of elected members, 478 political parties, public bodies, public officers 479 and those seeking public office; 480 government conduct, 481 policy 482 or legislation; 483 and political views and public conduct of persons who are engaged in activities that have become the subject of political debate, including trade union leaders, Aboriginal political leaders, and perhaps political and economic commentators. 484 However, the mere fact that a publication mentions some political or government issue, or names some politician, does not mean that the publication is necessarily a communication “concerning” a government or political matter. 485 It is important to consider the true nature and character of the publication so that it may be properly characterised. 486 A relevant factor is that it is the nature of the discussion that is important rather than the office or function of the person making the publication, although the office or function might, depending on the circumstances, affect or colour the manner in which the nature of the discussion is characterised. 487 Whatever its meaning, “government or political matters” will not extend to, for example, a publication advocating the commission of a crime as a means of redistributing wealth in a 477 478

479 480 481 482

483

484 485

486 487

Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [16]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1. See, for example, Peterson v Advertiser Newspapers Ltd (1995) 64 SASR 152 (performance of parliamentary duties by elected member); cf Australian Broadcasting Corporation v Hanson (unreported, Qld CA, 28 September 1998) (“free and general discussion of public matters” did not extend to a purportedly satirical song relating to the sexual orientation and preferences of the then Member for Oxley). See, for example, Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 (conduct of the ACCC and its chairman). See, for example, Brander v Ryan (2000) 78 SASR 234 at 249. See, for example, Moriarty and Wortley v Advertiser Newspapers Ltd (1998) 198 LSJS 31 (SA District Court, 9 July 1998) (cancellation of enquiry into government utility). See, for example, Sporting Shooters’ Association (Vic) v Gun Control Australia (1995) A Def R 52,030 (government policy concerning gun control); Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 (Fed Ct) (government “10 point plan” policy on native title); Chapman v Conservation Council (SA) (2002) 82 SASR 449 (State or local government development policies). See, for example, Communications, Electrical, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Commissioner Laing of the Australian Industrial Relations Commission (1998) 89 FCR 17; 159 ALR 73 (“third wave” industrial legislation); Levy v Victoria (1997) 189 CLR 579 (legislation permitting duck hunting); Registrar of the Western Australian Industrial Relations Commission v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Workers Union of Australia, Engineering and Electrical Division WA Branch [1999] WASCA 170 (State legislation regulating political donations by industrial organisations). Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124. Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Scully J, 21 July 1995); Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [28]; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [19]. Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [19], Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 458; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [17].

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capitalist society from the rich to the poor. 488 It is also not enough for the subject matter to be something of “utmost public importance to the citizens” of a State or the Commonwealth, such as a report about the arrest and charging by police of a suspected child abuser. 489 Discussion of the conduct of a judge or magistrate, including the correctness or otherwise of his or her decisions, ordinarily has no connection with the concept of representative government and will generally fall outside the ambit of the Lange defence. 490 The implied freedom will only apply to communications concerning the judiciary in exceptional cases such as discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts. The principle applies in these exceptional cases because communications of this kind also concern the acts or omissions of the legislature or executive government. 491 It would seem that the defence does not require the political discussion to already be under way. 492 Accordingly, the “first cab off the rank” in a particular political discussion will be covered by the extended defence. 493 The defendant’s conduct in publishing must have been “reasonable” [3.1000] Reasonableness is a question to be judged in all the circumstances of the case. For this reason, it was seen as subsuming the additional elements identified in Theophanous, namely, the defendant being required to prove that it was unaware of the falsity of the matter published and that it did not publish the matter recklessly. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication. 494 The Court in Lange v Australian Broadcasting Corporation thought that as a general rule, a defendant’s conduct in publishing material will not be reasonable unless the defendant: • had reasonable grounds for believing the imputation was true; • took proper steps, so far as they were reasonably open, to verify the accuracy of the material; • did not believe the imputation to be untrue; and

488

Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67 at 87 (per Heerey J), 98 (per Sundberg J); cf French J at 80.

489 490

492

Deren v New South Wales (1998) Aust Torts Reports 81-463 at 64,859. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [9]; Conservation Council of SA Inc v Chapman (2003) 87 SASR 62; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [12]; John Fairfax Publications Pty Ltd v Attorney General (NSW) (2000) 181 ALR 694 at [83]; O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698 at [126]. APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 at [65]; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [6]-[9]; Peek v Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196; 228 ALR 553 at [9]. Walker (1998) 6 TLJ 9 at 19.

493 494

Hartley v Nationwide News Pty Ltd (1995) 119 FLR 124 at 125. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573.

491

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• had sought a response from the person defamed and published the response made (if any), except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. 495 It has been suggested that these factors are neither “principles of law” nor “essential elements” of the defence. 496 Thus, for example, it was held that it was not necessary to take a response from the persons defamed when they were freely making use of the media themselves to convey their points of view. 497 Nevertheless, in most cases failure to satisfy one of the factors will prove fatal. 498 It has been said that the expected journalistic standard is not set at “some pinnacle of unreal perfection”. 499 Nevertheless, sloppy or lazy journalism is unlikely to be regarded as resulting in a reasonable publication. 500 The defence will not be available where errors are made when they are easily discoverable 501 or where the defendant is wilfully blind as to the truth or falsity of the imputations. 502 Reasonableness is unlikely to be shown where efforts to obtain a response are viewed in the circumstances as being lax or half-hearted, or if the opportunity to respond is made subject to conditions, particularly when the journalist knows or ought to know that the subject would want to respond and/or the publication is not urgent. 503 In the case of an inadequate opportunity to respond, publication of the plaintiff’s denials when used merely to juxtapose against the defendant’s allegations will not be a sufficient substitute. 504 Further, the mere unreasonableness of the plaintiff’s behaviour will not automatically make the defendant’s publication reasonable. 505 The requirement of reasonableness has been a demanding standard for media defendants to meet in practice, considering that their conduct is judged objectively by courts with the benefit of hindsight, far divorced in time from the pressures of deadlines or other factors that 495

496 497 498 499 500 501 502 503

504 505

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. The first requirement is objective. The third is subjective. Neither amount to a requirement as under Defamation Act 1974 (NSW), s 22 that subjectively the defendant honestly believed in the truth of the publication: see Walker (1998) 6 TLJ 9 at 25-26. Brander v Ryan (2000) 78 SASR 234 was a case where seeking a response from the plaintiff was held to be not practicable. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [92] per Gillard AJA. Conservation Council of SA Inc v Chapman (2003) 87 SASR 62 at 143. Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [92] per Gillard AJA; Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81. Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [989]. See, for example, Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (failure to confirm certain temporal facts which were basic to the report). See, for example, Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 (mayor criticising wrong company). Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [231]-[234]. See, for example, Moriarty and Wortley v Advertiser Newspapers Ltd [1998] SADC 3843 (9 July 1998) (half-hearted efforts); Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1018] (opportunity to respond subject to conditions). Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1019]. Brander v Ryan (2000) 78 SASR 234.

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may have attended the story. 506 It may not be sufficient to show “proper steps … to verify the accuracy of the material” if the media defendant relied on only one source. Further, when it comes to attempting to persuade a court that there were reasonable grounds for believing that an imputation was true, a media defendant may be required to identify the sources on which it relied in compiling the story. This may pose serious difficulties when those sources have asked not to be named or were promised anonymity in return for the supply of information. It is important to note that reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication concerning a government or political matter that would otherwise be held to have been made to too wide an audience. Thus, for example, reasonableness of conduct is not a necessary element of the defence of qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. 507 The publication must not have been actuated by malice [3.1010] The Court held that the publication must not have been actuated by malice 508 in the sense of the publication being made not for the purpose of communicating government or political informational ideas but for some improper purpose. 509 Existence of ill-will or other improper motive will not of itself defeat the qualified privilege: the publication must be actuated by the ill-will or improper motive. Also, considering that the subject matter of the communication will be government or politics, publication with the motive of causing political damage to the plaintiff or his or her party cannot be regarded as an improper motive. Nor can the vigour of an attack or the pungency of a defamatory statement, without more, ground a finding of ill-will or other improper motive. 510 Publication that exceeds what is necessary in manner or extent may be evidence of improper purpose. Collins cogently argues that, unlike, for example, a national newspaper, publication on the internet to people around the globe who do not have the same interest as the people of Australia in receiving information concerning Australian government or political matters may amount to a publication exceeding the necessary manner and extent. 511

506

507 508 509 510 511

See A Kenyon, “Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406. Brander v Ryan (2000) 78 SASR 234 is one of a few cases in which the Lange defence has been successful. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 573. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 citing Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. For a discussion of malice at common law see [3.930]. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574. Collins (2001), pp 129-130. Collins actually addresses this as a matter affecting the reasonableness of the publication, as it may be in relation to the Defamation Act 1974 (NSW), s 22 and now DA, s 30: see [3.1080]. At common law, exceeding manner and extent is evidence of abuse of privilege, which is preferred here: see also [3.960]. Either analysis might therefore be available in relation to the Lange defence, the effect being the same in any event.

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Common law public interest privilege after Reynolds and Jameel [3.1020] The House of Lords considered facts similar to Lange v Australian Broadcasting Corporation in Reynolds v Times Newspapers Ltd. 512 The response of a majority was to recognise a new-found “elasticity” in the common law enabling the court to give “appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern”. 513 In other words, there was a new acknowledgment that the “classical tests of reciprocal interest and duty or common interest” could be satisfied in the case of the media publishing at large in an appropriate case. In the subsequent House of Lords case Jameel v Wall Street Journal Europe Sprl (No 3) 514 Lord Hoffmann observed that Reynolds had seemed to have had little impact upon the way the law was applied at first instance and that it was “therefore necessary to restate the principles”. 515 The House of Lords saw the Reynolds defence as entailing at least two questions: (1)

Was the subject matter of the article, considered as a whole, a matter of public interest? The Reynolds defence had developed from the traditional form of qualified privilege based on a generalisation that in matters in the public interest, there could be said to be a professional duty on the part of journalists to impart information and a corresponding interest in the public in receiving it. That generalisation should now be regarded as a proposition of law rather than question of fact to be decided in every case. 516 In this connection there is familiar distinction between what is properly in the public interest and what may be merely of interest to the public.

(2)

If the publication, including the defamatory statement, passes the public interest test, the question becomes whether the steps taken to gather and publish the information were responsible and fair. This “responsible journalism” test should be applied in a practical and flexible manner having regard to practical realities. It is for the purposes of this test that Lord Nicholls in Reynolds developed his non-exhaustive list of guidelines. 517

Lord Hoffmann actually suggested a third test: that is, whether the inclusion of the defamatory statement was justifiable. The fact that the material was a public interest does not allow the journalist to drag in damaging allegations that serve no public purpose. They must form part of the story. Nevertheless, he saw this question as requiring a degree of latitude, making 512 513

Reynolds v Times Newspapers Ltd [2001] 2 AC 127. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 204 per Lord Nicholls.

514 515 516

Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359. Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [38]. This is a distinguishing factor from the traditional qualified privilege, which attaches to the occasion rather than the type of material. This has led some to suggest that the Reynolds defence is a “different jurisprudential creature” from the traditional defence from which it sprung: see, for example, Lord Hoffmann in Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [46] .. See in particular Lord Hoffmann in Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [48]-[56] and Baronness Hale at [145]-[149]. Lords Bingham (at [31]-[35]) and Hope (at [107]-[108]) discussed Reynolds in more general terms, as did Lord Scott (at [137]-[138]), who perceived no difference in the views of the court, but noted that if there was any difference he preferred the view of Lord Hoffmann.

517

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allowance for editorial judgment. The decision should not be made with the benefit of leisure and hindsight. His Lordship thought that to do so would make publication in the public interest too risky and would discourage investigative reporting. 518 The Supreme Court of the United Kingdom had an opportunity to consider the Reynolds defence and in particular expectations concerning verification in Flood v Times Newspapers Ltd. 519 When deciding whether to publish, and when attempting to verify the content of the publication, a responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute the publication. 520 Whether the duty of verification imposed by the requirement of responsible journalism has been satisfied depends upon the facts of the case. It involves a spectrum, the steps required depending upon the extent to which the defamatory allegations that are being reported have been adopted or endorsed by the publication. 521 The more serious the gravity of the allegations, the more onerous will be the duty of verification. Thus, where the publication is not confined to the mere reporting of accusations, inquiries or reasonable grounds to suspect but instead asserts guilt, the duty of verification will correspondingly be more demanding. 522 Verification involves both a subjective and objective element – the journalist must believe in the truth of the defamatory allegation and that belief must be the result of a reasonable investigation and must be a reasonable belief to hold. 523 Example

Flood v Times Newspapers Ltd [3.1030] Flood v Times Newspapers Ltd [2012] 2 AC 273 The defendant published a report which stated that allegations had been made against the plaintiff, a police officer in the extradition unit, that he was the subject of a police investigation into whether he was guilty of corruption. Subsequently the police investigation concluded that there was no evidence that the plaintiff had acted corruptly. The plaintiff thereupon sued the defendant for defamation. The trial judge accepted the evidence of the plaintiff that he was not guilty of corruption. The defendant sought to rely upon a Reynolds defence. The Supreme Court of the United Kingdom held that the defendant’s defence was successful. It had been in the public interest for the accusation of corruption to be published. Merely naming the plaintiff was not contrary to responsible journalism because it would not have been possible to publish the details of the case without disclosing to those close to the plaintiff that he was the officer to whom related or bringing others in the extradition unit under suspicion. Further, where a journalist

518 519 520 521

Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359 at [51]. Flood v Times Newspapers Ltd [2012] 2 AC 273. Flood v Times Newspapers Ltd [2012] 2 AC 273 at [51] per Lord Phillips P. Flood v Times Newspapers Ltd [2012] 2 AC 273 at [158].

522 523

See, for example, Hunt v Times Newspapers Ltd [2012] EWHC 1220 (QB). Flood v Times Newspapers Ltd [2012] 2 AC 273 at [79].

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Chapter 3 – Defamation Flood v Times Newspapers Ltd cont. alleges that there are grounds for suspecting that a person has been guilty of misconduct, the duty of verification requires that a responsible journalism should satisfy himself or herself that such grounds exist, but it is not necessary that he or she should know what those grounds are. Their existence may be based on information from reliable sources or inferred from the fact of a police investigation in circumstances where such an inference is reasonable. Before publishing such an article responsible journalism would require that the journalist be reasonably satisfied that the supporting facts are true and that there is a serious possibility that the plaintiff had been guilty of the misconduct of which he or she has been accused. That had been the case here.

[3.1040] The Reynolds defence was repealed by the Defamation Act 2013 (UK), s 4, which enacted in its place a new offence of “publication on a matter of public interest”. This defence arises where a statement complained of was, or formed part of, a statement on a matter of public interest and the defendant reasonably believed the publishing statement complained of was in the public interest. By contrast with the Reynolds defence, if the statement was, or formed part of, and accurate and impartial account of the dispute to which the claim was a part, the court must in determining whether it was reasonable for the defendant to believe that the state was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation. The court must also make allowances for editorial judgement as it considers appropriate when deciding whether it was reasonable for the defendant to believe that the statement was in the public interest. It has in the past been held in the New South Wales Court of Appeal that for a number of reasons, including the influence on Reynolds of the Human Rights Act 1998 (UK) and the endorsement of the traditional common law approach by a unanimous High Court in Lange v Australian Broadcasting Corporation and, more recently, in Roberts v Bass, this change does not apply in Australia. 524 The restatement of Reynolds in Jameel post-dates both of those decisions but it too has been held to be at odds with the approach in Lange. 525 It remains to be seen whether the High Court is prepared to revisit its pronouncements and similarly adopt the more elastic approach to the concept of reciprocal duty and interest. 526 That said, even if the High Court were not to revisit Lange v Australian Broadcasting Corporation and adopt instead a common-law defence akin to the Reynolds defence, there would seem to be no reason why cases which have considered Lord Nicholls’ guidelines such as Flood v Times 524

525 526

John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373 at [107]-[112]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1168]-[1170]; John Fairfax Publication Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [63]. Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764 at [758]. See further Bashford v Information Australia Pty Ltd (2004) 218 CLR 366 where a majority of the High Court was prepared to find an occasion of privilege arose in a case of an extensive publication of defamatory statements that could be related to a widely defined subject of public interest (in that case occupational health and safety) when they are published to persons who have some responsibility for matters falling within the subject of interest: cf, for example, McHugh J at 381 who saw such a proposition as a potentially expansive interpretation of common law qualified privilege with far-reaching consequences

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Newspapers Ltd should not have relevance when considering the application of similar guidelines now enacted as part of the statutory qualified privilege under the uniform defamation legislation.

Statutory qualified privilege for provision of information Generally [3.1050] While common law qualified privilege may have limited relevance to the media due to the requirement of reciprocity, the statutory qualified privilege provided by s 30 of the uniform defamation legislation 527 provides for greater protection for publications in the public interest. Section 30 applies to the publication of material where: • the recipient has an interest or apparent interest in having information on some subject; • matter is published to the recipient in the course of giving to him or her information on that subject; and • the conduct of the publisher in publishing the matter is reasonable in the circumstances. Section 30 is a re-enactment of the statutory qualified privilege for provision of information previously enacted by the New South Wales Defamation Act 1974, s 22. The case authorities that have interpreted this section will therefore continue to be relevant to the application of s 30.

Interest or apparent interest in having information [3.1060] For the purposes of s 30 “interest or apparent interest” has a broader meaning than the type of interest relevant to common law qualified privilege. 528 Section 30 provides that a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication the defendant believes on reasonable grounds that the recipient has that interest. Further, the interest or apparent interest of the recipient must be in knowing a particular fact, not simply as a matter of curiosity but as a matter of substance apart from its mere quality as news. 529 For example, it was held that the general audience of a television or radio programme or newspaper has an interest in receiving information in relation to matters such as the disappearance of a well known anti-drug campaigner from Griffith and the continued liberty of six Griffith men identified in a Royal Commission Report as being

527 528 529

ACT: s 139A; NT: s 27; SA: s 28. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC); Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [104]. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40.

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responsible for his murder, 530 the training regime for a rugby league team, 531 proposed changes to a government scheme for home buyers 532 and the competence of a business consultant. 533

Published in the course of giving information [3.1070] Whether the matter is published in the course of giving the recipient information on a subject is not affected by the imputations being untrue. 534 However, the imputations must be relevant to the information that is published. 535 The imputation must not be distinct or separate from matter published in the course of giving the audience information on the subject in question. 536

Conduct of the publisher in publishing the matter is reasonable [3.1080] While s 30, like its New South Wales predecessor, is designed to enlarge the protection afforded by the common law qualified privilege, it does not give carte blanche to the media to publish defamatory matter on the basis that the public has an interest in receiving information on the relevant subject. The section substitutes a requirement of reasonableness in the circumstances in lieu of the reciprocal duty and interest required by the common law qualified privilege. 537 Section 30(3) provides some guidance regarding the factors which a court may take into account when determining whether the publication is reasonable, viz: (a)

the extent to which the matter published is of public concern;

(b)

the extent to which the matter published concerns the performance of the public functions or activities of the person;

(c)

the seriousness of any defamatory imputation carried by the matter published;

(d)

the extent to which the matter published distinguishes between suspicions, allegations and proven facts;

(e)

whether it was necessary in the circumstances for the matter published to be published expeditiously;

(f)

the nature of the business environment in which the defendant operates;

(g)

the sources of the information in the matter published and the integrity of those sources;

(h)

whether the matter published contained the substance of the person’s side of the story and, if not whether a reasonable attempt was made by the publisher to obtain and publish a response from the person; and,

530

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

531 532 533

Austin v Mirror Newspapers Ltd [1986] AC 299 (PC). Smith v John Fairfax & Sons Ltd (1987) 81 ACTR 1. Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374.

534 535

Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 391. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30.

536 537

Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [113]. See [3.860].

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(i)

any other steps taken to verify the information in the matter published.

(j)

any other circumstances that the court considers relevant.

Relevant “other circumstances” might include, for example, whether each imputation was relevant to the subject about which information is being given and whether the manner and extent of publication exceeds what is reasonably required in the circumstances. In a given case publication on the internet, with its worldwide reach, may mean that the publication is unreasonable due to the manner and extent of publication exceeding what was necessary. 538 The previous New South Wales section did not prove to be a particularly attractive defence for the media, perhaps due to high expectations regarding what type of conduct should be regarded as reasonable. 539 Conduct and decisions which may have seemed reasonable at the time under the pressure of deadlines may not be considered reasonable by a court months or years later. Further, to the extent that sources of information may need to be disclosed in order to judge their “integrity”, the section continued to pose a problem for journalists. The list of guidelines in s 30(3) for the determination of reasonableness are based on the non-exhaustive list set out by Lord Nicholls in the House of Lords in Reynolds v Times Newspapers Ltd, 540 a case which expanded the common law qualified privilege in the United Kingdom. This list also appeared in the New South Wales section, with the exception of the reference to the “nature of the business environment in which the defendant operates” which is a new guideline created for the uniform defamation legislation. This, perhaps, is an effort by the Standing Committee for Attorneys-General to indicate that courts ought to take a more flexible approach to the media which takes into account the fact that it is a business often conducted in an environment involving the pressure of deadlines. This factor may allow Australian courts to follow overseas courts in allowed greater latitude to the media, particularly in the case of reporting matters in the public interest. 541 The objective truth or falsity of what is said is irrelevant to this defence. What the defendant must do is show that he or she acted reasonably in publishing the material. 542 Further, while an honest belief in the truth of the imputations will usually be a critical element in the proof of reasonableness, it may not always be an essential element: it is not the case that in all cases reasonableness cannot be established without proof of honest belief. 543 Section 30(3) involves a balancing exercise with respect to the various factors, in light of practical realities. 544 Reasonable conduct may demand that the person who is the subject of the allegations should be given an opportunity to respond to allegations made against him or 538 539

540 541 542

Collins (2001), p 133. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346. Evatt v Nationwide News (unreported, NSW Supreme Court, Newman J, 6 March 1997) and Lear v Malter (unreported, NSW Supreme Court, Donovan AJ, 14 March 1997) have been two of the few cases where the media defendant was held to have acted reasonably and where the previous NSW defence was successfully relied upon: Gillooly (1998), p 202. Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 205. See, for example, Jameel v Wall Street Journal Europe Sprl (No 3) [2007] 1 AC 359. See further [3.990]. Austin v Mirror Newspapers Ltd [1986] AC 299 (PC).

543 544

Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493 at 500. Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [130].

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her. The defence may therefore fail if the defendant fails to provide an opportunity to respond or fails to mention a denial of the allegations. 545 However, if it is apparent that the person who is the subject of allegations will not agree to an interview, the journalist may be relieved from seeking one, particularly where there is other evidence corroborating the allegations. 546 As noted by the Supreme Court of the United Kingdom, the expectations in relation to verification may involve a spectrum: the more serious the gravity of the allegations, the more onerous will be the duty of verification. 547 The defence may fail if the defendant did not make adequate enquiries to verify his or her information, so that the defamatory imputation is based on a flimsy, or no, foundation. 548 Normally it will not be reasonable to publish what is no more than a rumour and speculation of a person’s allegedly discreditable conduct. 549 However, there may be a case where, for example, a defendant is excused from taking what might otherwise be regarded as adequate steps to verify the information because of the necessity to publish urgently, meaning that it would not have been practical to make further enquiries. 550 Further, where the defendant personally observed the event which forms the foundation of the published imputations where there is no basis for the defendant to doubt the accuracy of what was personally observed, he or she will not have acted unreasonably merely because he or she made no further inquiry into the accuracy of what was observed. 551 Also, the defendant does not conduct himself or herself unreasonably if he or she publishes the matter complained of notwithstanding his or her knowledge that the plaintiff does not want it published. 552

545

546 547 548

549 550

551 552

Hansen v Border Morning Mail Pty Ltd (1987) 9 NSWLR 44; Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149].; cf Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1019] (report of denial should be more than utilised as a juxtapose to emphasise allegations). Baltinos v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Studdert J, 14 July 1989). Flood v Times Newspapers Ltd [2012] 2 AC 273 at [79]. Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Austin v Mirror Newspapers Ltd [1986] AC 299 at 318 (defence failed where newspaper published statements about the training methods of a rugby league trainer without speaking to the trainer, interviewing players or attending training sessions); Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (failure to confirm certain temporal facts which were basic to the report); Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [149]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797. Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [130]. Nevertheless, an ongoing crisis in the provision of mental health services in a region did not mean that there was a necessity for an article to be published expeditiously and promptly: [150]. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 48. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 48.

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Malice [3.1090] Under s 30(4) of the uniform defamation legislation the defence will be lost if the plaintiff proves that the publication was actuated by malice, 553 as that term is understood at common law. 554 As at common law, malice may be inferred from the words of the publication itself where, considered as a whole, the language used is grossly exaggerated or disproportionate to the facts. 555

The relationship between the uniform defamation legislation and the extended common law qualified privilege [3.1100] In Lange v Australian Broadcasting Corporation the High Court stressed that it had only been necessary to examine the effect of the defamation law of New South Wales because the argument before it was conducted on the footing that the plaintiff’s action was to be determined solely by a regard to that law. 556 In the result, it was held that s 22 of the Defamation Act 1974 (NSW) ensured that even without the common law extension of qualified privilege developed by the court, the New South Wales law of defamation did not place an undue burden on communications falling within the protection of the Constitution. 557 In other words, a defendant in New South Wales had available to him or her both the Defamation Act 1974 (NSW), s 22 and the extended common law qualified privilege concerning communications related to government or political matters. While the Reynolds elasticity in common law qualified privilege was said to have not flowed on to common law qualified privilege in Australia, the New South Wales Parliament nevertheless appropriated the list of guidelines developed in that case to determine when it was appropriate for reciprocity to be relaxed and for the media to be able to claim the defence, as guidelines for when the publisher’s conduct would be regarded as reasonable for the purposes of s 22 of the Defamation Act 1974 (NSW). 558 As noted above, 559 this section lives on in the form of s 30 of the uniform defamation legislation. 560 Based on Lange itself, defendants in cases of defamatory publications concerning government or political matters should therefore be entitled to rely on s 30 of the uniform defamation legislation as an alternative to the extended common law qualified privilege, since s 30 will be consistent with the constitutional freedom of communication recognised in Lange. However, while both of these defences contains an element requiring the defendant’s conduct to have been reasonable, the guidelines provided for determining reasonableness 553

ACT: s 139A(4); NT: s 27(4); SA: s 28(4).

554

556 557 558

DA: s 24(2); ACT: s 134(2); NT: s 21(2); ACT: s 22(2). See further [3.960]. Pinniger v John Fairfax & Sons Ltd (1979) 26 ALR 55 at 61-62, applying Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 332-333. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 575. The guidelines were inserted as s 22(2A).

559

See [3.1050].

560

The Lange defence might be seen as a “political or government communication” subset of the wider statutory defence: A Kenyon“Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406 at 429.

555

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differ. Those identified in Lange are based on factors that were commonly taken into account when applying Defamation Act 1974 (NSW), s 22 as at the time of the High Court’s judgment, 561 which predated the inclusion of the Reynolds guidelines into that section. The Reynolds guidelines, with the addition of the guideline concerning “the nature of the business environment in which the defendant operates” now appear in s 30. Although there is some commonality between the two lists in the form of whether steps were taken to verify the accuracy of the material and whether the defamed person’s response was published or at least attempts made to obtain a response, s 30 no longer expressly refers to whether the publisher had reasonable grounds for believing the invitation was true, nor requires that the publisher not believe the invitation to be untrue, although in a given case it may be that these factors are relevant as “any other circumstances”, which may also be taken into account. By contrast, there are factors in the s 30 list which might be considered as holding greater promise for a media defendant. These include the extent to which the matter published was of public concern, the extent to which it concerns the performance of the public functions or activities of the defamed person, the seriousness of the defamatory imputation and the nature of the business environment in which the defendant operates. Consequently, while media defendants have in the past had difficulty in finding protection from the Lange defence and the original s 22 of the Defamation Act 1974 (NSW), s 30 of the uniform defamation legislation may have a wider application. If this is the result, and s 30 proves to be a more favourable defence then it may mean that while both may be pleaded in the alternative, the section will have reduced the significance of Lange in the defamation sphere. 562

Honest opinion and fair comment [3.1110] The freedom to express an honestly held opinion or to express a comment or criticism is an important aspect of freedom of speech and is accorded precedence over an unqualified right to individual reputation. 563 Honest opinion is an important defence for the media. Amongst other things, it allows the media to publish restaurant, literary, concert and art reviews, review and comment on theatre, cinema, music and sports, and review and comment on public affairs. At common law the balance is struck between free speech and reputation in this respect by a defence called “fair comment”. This has been restyled under the uniform defamation legislation as the “honest opinion” defence.

561

Chapman v Conservation Council (SA) (2002) 82 SASR 449. See [3.1000].

562

Although naturally it will remain significant in all other instances of limitations on free communications concerning government or political matters: see, for example, [3.730], [5.790], [7.570], [8.1050] and [9.30]. Alternatively, the courts could take a more flexible approach to reasonableness in the Lange defence to give greater account to the public interest, without fundamental change of the freedom of communication principle recognised in Lange: see an interviewee’s response noted in A Kenyon“Lange and Reynolds qualified privilege: Australian and English defamation law and practice” (2004) 28 MULR 406 at 431. However, since the public interest or concern may now be considered under the wider s 30 defence this step may have been rendered unnecessary. Lyon v The Daily Telegraph Ltd [1943] KB 56 at 72.

563

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Fair comment [3.1120] At common law, the “fair comment” defence has three elements: (1)

a comment rather than a statement of fact;

(2)

a subject matter of public interest;

(3)

the comment must be fair.

Comment rather than fact [3.1130] The defence requires a statement of opinion or comment, as opposed to a statement of fact. In other words there must be a “deduction, inference, conclusion, criticism, judgment, remark or observation” as distinct from a “direct statement concerning, or description of,” a matter. 564 For example, suppose the defendant stated: “Harry took illegal drugs at the party. Such conduct is disgraceful.” The first sentence would be a statement of fact and the second would be an expression of the defendant’s opinion or comment on Harry’s conduct. The first sentence would need to be justified or defended on the basis of privilege, while the second sentence may be the subject of a fair comment defence. 565 However, if the defendant merely asserted that Harry had been guilty of disgraceful conduct, without stating what that conduct was, then that would amount to an allegation of fact, for which there is no defence except justification or privilege. 566 The relevant test is not what the defendant intended to say, but rather whether an ordinary, reasonable recipient would understand it as being a statement of opinion or a statement of fact. 567 It is a question for the jury to decide what is fact and what is comment, unless no jury could reach any other conclusion. 568 Merely prefacing remarks with words such as “it seems to me” or “in my opinion” is not conclusive as indicating a comment. 569 An important requirement is that the facts upon which the comment is based must be “stated, referred to or notorious to those to whom the matter [was] published”. 570 In other words, the facts must either be expressly stated in the same publication as the comment, in another existing publication to which the publication containing the comment clearly refers, or to already be well known to the audience. Three examples illustrate the distinction between these alternatives: 564

Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167-168.

565

See, for example, Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 where allegations of plagiarism and “lazy journalism” against a television journalist after identifying the similarity between his report and an earlier report by another journalist were said to be “clearly” matters of opinion: at [220]. Kemsley v Foot [1952] AC 345 at 356 per Lord Porter. See also Gillooly (2004), p 62 where a similar example is given. Clarke v Norton [1910] VLR 494 at 501; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532.

566 567 568

569 570

Jones v Skelton [1963] SR (NSW) 644; [1963] 1 WLR 1362; [1963] 3 All ER 952 at 964 (All ER); O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 316; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 270.

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• “the Minister is unfit to hold public office because he lied to Parliament” is an example of where the fact is expressly stated in the same publication as the comment; • “the Minister is unfit to hold public office because of what he said in Parliament last week” is an example of a fact being referred to; and • “Mr A (who is widely known to have pleaded guilty to perjury) is unfit to hold public office” is an example of facts that are notorious. 571 The purpose of the rule is that, in one way or another, the facts are made known to the persons to whom the publication was made to enable recipients to judge for themselves whether they agree with the opinion published by the defendant. 572 Sometimes this is referred to as including the “substratum of fact”, 573 although this term should not be understood as anything other than an express statement of the facts, reference or circumstance in which the facts that are notorious. 574 Failure to include sufficient linkage between the comment alleged and the factual material relied on by way of a statement of the facts or reference, where the facts are not notorious, may result in the publication being regarded as a statement of fact rather than opinion. 575 Example

Channel Seven Adelaide Pty Ltd v Manock [3.1140] Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 The defendant broadcast a promotion for its television programme Today Tonight which featured a picture of the plaintiff, a forensic pathologist who had given evidence at a murder trial and retrial, with a voice-over that stated: “The new Keogh facts. The evidence they kept to themselves. The date, dates and documents that don’t add up. The evidence changed from one court to the next.” The plaintiff sued for defamation, claiming that the broadcast had imputed that the plaintiff had deliberately concealed evidence from the trials. The defendant claimed that the words constitute fair comment on a matter of public interest. The High Court held that the four sentences in the promotion voiceover did not expressly state any facts on which the comment was being made. They did not identify the “evidence they kept to themselves” or any facts on which the statement was based. They did not specify the “date, dates and documents” or the discrepancies between them which prevented them from adding up. They did not say what the “new” facts were. They did not specify the “evidence” which changed or any facts on which that statement was based. Secondly, the four sentences did not identify “by clear reference”

571 572

573

Lowe v Associated Newspapers Ltd [2007] QB 580 at 600. Myerson v Smith’s Weekly Publishing Co (1923) 24 SR (NSW) 20 at 27; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531, 532; Kemsley v Foot [1952] AC 345 at 356; Sims v Wran [1984] 1 NSWLR 317 at 322; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327. Kemsley v Foot [1952] AC 345 at 357 per Lord Porter.

574 575

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 276. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 269.

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Australian Media Law Channel Seven Adelaide Pty Ltd v Manock cont. or otherwise any facts. Thirdly, it was not shown that there were any notorious facts on which those four sentences could be understood as making comment. No notorious facts were suggested by the statement “the new Keogh facts” – if they were new to viewers and only to be revealed when the programme being promoted was broadcast they could not be notorious.

[3.1150] Channel Seven v Manock demonstrates that brief advertisements are sometimes unpromising material for a defence of fair comment. The impact they are designed to achieve may be difficult to reconcile with the requirement that the allegation must be recognisable as comment and not as a statement of fact. 576 An exception to what has been described as “the conventional case” 577 of facts needing to be “stated, referred to or notorious to those to whom the matter [was] published” is where the factual basis for the comment is matter which has been submitted to the public for its consideration, such as a literary, musical or artistic work or sporting event. 578 This would also include, for example, the food and/or service in a restaurant. 579 The rationale for this exception is that the submission of the work or event to the public for its consideration amounts to an implied invitation for comment. 580 In such cases mere identification or reference to the work or event is sufficient. Were it otherwise, it would be necessary or at least very expedient to set out verbatim the entire contents of the subject matter upon which the opinion is made, such as the full text of a play. 581 In England this exception of matters submitted to the public for consideration was extended to cover how well-known newspapers were managed, including their accuracy, truthfulness and use of tone. 582 The validity of such an extension, and the scope of this exception is yet to be finally determined in Australia. 583

576

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 256 per Gleeson CJ. See also C v L [2005] SASC 315 (promotions for the A Current Affair television programme, which featuring an interview with a woman who claimed that her former de facto partner had an overbearing and arrogant manner towards her and treated her poorly, included the statement “you just can’t treat women like a doormat” extracted from the interview – it was held that while the programme itself may have had sufficient statement of the facts to provide a basis for the comment, the statement “you just can’t treat women like a doormat” in the promotions implied assertions of fact rather than comment and therefore were outside the ambit of the fair comment defence).

577 578 579 580 581

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 341 per McHugh J. O’Shaughnessy v Mirror Newspapers (1970) 125 CLR 166; Kemsley v Foot [1952] AC 345 at 385; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 254. See, for example, Gacic v John Fairfax Publications Pty Ltd [2009] NSWSC 1403 at [173]. Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 at 173-175. Telnikoff v Matusevitch [1992] 2 AC 343 at 361.

582 583

Kemsley v Foot [1952] AC 345 at 385. Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 283.

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Subject matter of public interest [3.1160] The comment must relate to a subject matter of public interest because free comment on such matters is supposed to promote the common good. 584 There are differing views concerning the meaning of “public interest” for these purposes. A broad interpretation suggests that “public interest” refers to matters in the public domain either because: (1)

they are such as to affect people at large so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or to others; 585 or

(2)

they have been submitted to the public and thereby invited comment. 586

The first class includes, for example, the conduct of a person (usually the plaintiff) involved in matters of government or public administration; 587 so far as it is relevant to their public positions and not their private lives; 588 the conduct of the affairs of a public company or trade union; 589 or even the administration of a football team. 590 The second class relates to matters made available to the public including public places such as restaurants or entertainment facilities; literary, artistic and other works such as books, plays and newspapers; 591 and the performance by actors in public entertainment or sporting performances. 592 In relation to literary or artistic works, the criticism may relate to its content or form: it may be criticised for its treatment of life or morals that it depicts as much as for bad writing or style. 593 Even the work of a newspaper or broadcast critic can properly be a matter of public interest subject to criticism. 594 While such a broad interpretation was endorsed by Brennan CJ and Gaudron J in Bellino v Australian Broadcasting Corporation, 595 the majority when interpreting the meaning of “a subject of public interest” for the purposes of the previous fair comment defence in s 377(8) of the Queensland Criminal Code referred to “matter of public interest” under the common law 584 585 586

Lyon v Daily Telegraph [1943] KB 746 at 752. London Artists Ltd v Littler [1969] 21 QB 375 at 391 per Lord Denning. Kemsley v Foot [1952] AC 345 at 355.

587

Slim v Daily Telegraph Ltd [1968] 2 QB 157; Henwood v Harrison (1872) LR 7 CP 606; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-218. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 (conduct of officer of the Department of Foreign Affairs relevant to his fitness for the office of secretary of that Department); cf Mutch v Sleeman (1928) 29 SR (NSW) 125 (criticism of member of parliament as being “a brutal wife-basher” not a matter of public interest). South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133 (company); Duane v Granrott [1982] VR 767 (trade union). Allworth v John Fairfax Group Pty Ltd (unreported, ACT Supreme Court, Higgins J, 25 March 1993).

588

589 590 591

592 593 594 595

See for example, Thomas v Bradbury Agnew & Co Ltd [1906] 2 KB 627 (book); Merivale v Carson (1887) 20 QBD 275 (play); Kemsley v Foot [1952] AC 345 (newspaper); Harry Seidler & Associates Pty Ltd v John Fairfax & Sons Ltd (1986) Aust Torts Reports 80-002 (architecture). London Artists Ltd v Littler [1969] 2 QB 375; Cornwell v Myskow [1987] 2 All ER 504 (performance of actor); Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 (sporting performance). Kemsley v Foot [1952] AC 345 at 356. Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 189-198 (per Brennan CJ) and 240-242 (per Gaudron J).

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defence of fair comment as meaning “the actions or omissions of the personal institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. 596 Such an interpretation focuses on the conduct of individuals rather than “some concept defined at a level of generality divorced from” such conduct, including “organised crime and corruption in Queensland” as alleged by the defendant in that case or the other topics that might be contemplated by the broad interpretation as set out above. 597 References to general topics such as “political matters” or the “administration of public affairs or institutions” are no more than “shorthand statements” to focus the attention on the individuals participating in those activities. 598 It is insufficient to make a matter in the public interest for the plaintiff to be a public figure who has a high public profile. It is not the case that public figures do not have a private life. 599 A public figure’s private behaviour or character may become a matter of public interest in one of two ways: either because it affects the performance of his or her public duties or because he or she makes it such a matter himself or herself. In relation to the second way, if the plaintiff deliberately puts himself or herself forward to the public as subscribing to such high standards in private behaviour so that he or she may be taken as having appealed to the public for its judgment on that private behaviour, it cannot then be heard to say that the public does not have the right to pronounce the judgment which he or she asked of it. 600

Comment must be fair [3.1170] There are different aspects to the requirement that the comment be “fair”. In the first place, the comment must be based on facts that are either true 601 or, if erroneous, published under privilege. 602 The former is based on the notion that a defendant cannot simply invent or misrepresent the facts and then claim that his or her opinion based on those facts is fair. 603 If the comment is based on facts expressly stated in the published material, the defendant must prove all those facts upon which the comment is based to be true in substance and failure to do so with respect to any one will result in the defence failing. 604 On the other hand, where the opinion is based not on facts stated in the published material but on facts assumed to be known to the recipient and only implied in the defamatory material, the defendant is required to only show what facts are to be implied and the truth of them. 605 Proof 596 597 598 599 600 601 602 603

604 605

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 (per Dawson, McHugh and Gummow JJ). Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217. Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217-218. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 165. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167. Goldsbrough v John Fairfax and Sons Ltd (1934) 34 SR (NSW) 524 at 532. See, for example, Lewincamp v ACP Magazines Ltd (No 3) [2008] ACTSC 81 at [288]. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 320 Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319-320; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252-253 (per Gleeson CJ), 266, 270 (per Gummow, Hayne and Heydon JJ). See, for example, Madden v Seafolly Pty Ltd [2014] FCAFC 30. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 553-554, 585. Kemsley v Foot [1952] AC 345.

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of facts sufficient to support the objective fairness of the opinion is all that is required. 606 The latter is an exception to the former, and is derivative of the protection provided for privileged publications. 607 It requires, however, that the commentator based the comment on a fair and accurate account of the statement. 608 Secondly, the comment must be “objectively fair”. The relevant question will be whether a fair-minded person could honestly express the opinion on the proved facts. 609 It does not mean that the opinion must be “fair” in the sense of being objectively reasonable 610 or correct. 611 Thus, if the opinion is honestly held, it may be obstinate, foolish, offensive or prejudiced. 612 The essence of the defence is that everyone is entitled to express an opinion provided those hearing or seeing the publication can identify it as an opinion and decide for themselves whether they agree with it. 613 However, even if the opinion is honestly held, the fair comment defence will fail where the comment was actuated by malice in the sense of spite or ill-will, or some irrelevant motive, such that it does not represent a disinterested judgment upon the subject matter. 614 As such, the notions of honesty and malice are distinct issues.

Honest opinion [3.1180] As may be seen, the name “fair comment” is something of a misnomer. This may have been the impetus for the name of the defence being changed when it was enacted in the uniform defamation legislation as s 31(1). 615 This section provides a defence if the defendant can show that: (1)

the matter was an expression of opinion rather than a statement of fact;

(2)

the opinion related to a matter of public interest; and

(3)

the opinion is based on “proper material”.

There is therefore a degree of commonality in the elements in the statutory and common law defences. 616 606

Gillooly (1998), p 131.

607 608 609

Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 321. Brent Walker Group Plc v Time Out Ltd [1991] 2 QB 33 at 45. London Artists Ltd v Littler [1969] 2 QB 375 at 392; Telnikoff v Matusevitch [1992] 2 AC 343 at 354.

610

Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171 at 174; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252 per Gleeson CJ. London Artists Ltd v Littler [1969] 2 QB 375 at 393.

611 612 613 614 615 616

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 252 per Gleeson CJ French v Triple M Melbourne Pty Ltd (No 5) [2008] VSC 553 at [10]. Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35; Gardiner v John Fairfax and Sons (1942) 42 SR (NSW) 171. ACT: s 139B; NT: s 28; SA: s 29. In the United Kingdom the common law defence of fair comment has been abolished under Defamation Act 2013 (UK), s 3 and replaced by a new “honest opinion” defence, where there is (a) a statement of opinion; (b) the statement indicated, whether in general or specific terms, the basis of the opinion; and (c) an honest person could have held the opinion on the basis of any fact which existed at the time the statement was

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Additional defences are now provided where the opinion published by the defendant is that of an employee or agent 617 or a commentator. 618 The first of these additional defences will provide express protection for publication of opinions by, for example, columnists, while the second should cover, for example, interviewees, guests appearing on talk shows or talkback shows and authors of letters to the editor. Freelance journalists might alternatively be seen as either an agent or commentator, depending on the relationship with the defendant.

Opinion rather than fact [3.1190] The principles relevant to judging whether a statement is comment rather than fact the purposes of the common law will also apply to whether a statement is opinion rather than fact for the purposes of s 31. 619 There must be a “deduction, inference, conclusion, criticism, judgment, remark or observation” rather than a “direct statement concerning, or description of,” a matter. 620 Further, in light of the views expressed by the majority of the High Court in Channel Seven Adelaide Pty Ltd v Manock it is likely that the opinion will need to be based on facts which must be “stated, referred to or notorious to those to whom the matter [was] published” 621 so that the recipient will be able to determine that it is an expression of opinion and form a view for himself or herself whether it is fair. The exception for work or events submitted to the public for its consideration will also apply. There was nothing in the passage of the uniform defamation legislation to suggest a watering down of this requirement so that it would be sufficient for the defence under s 31 to simply identify the subject matter of the comment in the publication rather than the facts themselves. 622

Matter of public interest [3.1200] Like the common law, honest opinion under s 31 must relate to a matter of public interest. A similar issue will arise concerning the exact scope of “public interest” for these purposes but it also will not extend to the private conduct of individuals unless that conduct has a bearing on public duties.

Based on proper material [3.1210] “Proper material” is defined as meaning material that is substantially true or which was published on occasion of absolute or qualified privilege (whether under the Act or at general law); or a publication covered by s 28 (public document or fair copy, summary, or

617 618 619 620 621 622

published or anything asserted to be a fact in a privileged that was published before the statement. This defence is defeated if the claimant shows that the defendant did not hold the opinion. Where, on the other hand, the statement is a republication or a republication of the statement made by another person the defence is defeated if the claimant shows that the defendant knew or ought to have known that the original author did not hold the opinion. DA: s 31(2); ACT: s 139B(2); NT: s 28(2); SA: s 29(2). DA: s 31(3); ACT: s 139B(3); NT: s 28(3); SA: s 29(3). Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [84]. Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167-168. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 316; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at 270. Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at [84].

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extract of a public document) or s 29 (fair report of proceedings of public concern). The requirement that the opinion be based on “proper material” reflects the common law requirement that the comment must be fair in the sense of being based on facts which are true or protected by privilege. Accordingly a defence of honest opinion cannot succeed if the publisher misstates the facts on which the opinion is based, unless the misstatement of facts is protected by privilege. In relation to facts protected by privilege under the uniform defamation legislation, honest opinion may be based on, for example, the statement made or fairly reported to have been made in Parliament, court or a public meeting related to a matter of public interest. Section 31(6) expressly provides that opinion has not ceased to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

Honesty [3.1220] Unlike the common law, which regards “fairness” or honesty as an essential element of the defence, under the uniform defamation legislation, absence of honesty is regarded as a means of defeating the defence. The significance of this change lies in the onus of proof. Requiring a defendant to prove his or her honesty may impose difficulties in practice from an evidentiary point of view. By contrast the uniform defamation legislation provides that the defence of honest opinion will be defeated if, and only if, the plaintiff is able to prove that in the case of publication of the opinion of: • the defendant, the opinion was not honestly held by the defendant at the time of publication; • an employee or agent, the defendant did not believe that the opinion was honestly held by the employee or agent at the time of publication; • a commentator, the defendant did not believe that the opinion was honestly held by the commentator at the time of publication. 623

Relationship between fair comment and honest opinion [3.1230] For the most part the defence of honest opinion under the uniform defamation legislation re-enacts the common law fair comment defence. There is, however, one important difference. The fact that s 31 provides that the defence will be defeated “if, and only if” the plaintiff can show that the opinion was not honestly held, or that there was no belief that the opinion was honestly held by the employee/agent/commentator, without mention of malice would seem to suggest that the fact that the opinion was actuated by malice, including ill will or spite, will not cause the defence to fail. It may be that the presence of malice in an appropriate case constitutes evidence of an absence of honesty. Otherwise, while the two defences may continue to be pleaded in the alternative it may be that the statutory honest opinion defence has wider application than the common law fair comment defence. 623

DA: s 31(4); ACT: s 139B(4); NT: s 28(4); SA: s 29(4).

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Relationship between fair comment/honest opinion, justification and privilege [3.1240] As already noted, where an imputation is characterised as both comment/opinion and fact both the fair comment/honest opinion defence and the defence of justification may be available. 624 However, if the facts stated in the publication that form the basis of the opinion are themselves defamatory the defendant will need to plead justification or privilege and will be unable to plead fair comment or honest opinion. 625 Proving an opinion “correct” for the purposes of a justification plea entails a heavier burden than a fair comment defence, 626 which only requires the defendant to show that the opinion was “objectively fair” in the sense of being honestly held. 627 The defendant’s state of mind is irrelevant to a plea of justification, but a fair comment defence, like qualified privilege, will fail if the defendant was actuated by malice while an honest opinion defence will fail if the opinion is not honestly held. Further, the defence of comment will not be available in relation to a statement only capable of being a statement of fact. 628

Innocent dissemination [3.1250] It has already been noted that the criterion of liability is the understanding produced in the recipient and not the intention actuating the publisher. 629 Nevertheless, an innocent intention may be relevant for the purposes of the defence of “innocent dissemination”. The innocent dissemination defence in the uniform defamation legislation replaces a variety of differing provisions in that the previous statutes. Under s 32, 630 the defence requires the defendant prove that: • he or she published the matter merely in the capacity, or as an employee or agent, of a “subordinate distributor”. A “subordinate distributor” is someone who was not the first or primary distributor of the matter, was not the author or originator of the matter, and did not have any capacity to exercise editorial control over the content or publication of the matter; • he or she neither knew, nor ought reasonably to have known, that the matter was the defamatory; and • such lack of knowledge was not due to any negligence on his or her part. The defence operates as an exception to the general rule that all persons who participate in the publication of defamatory matter are jointly liable for it. However, the defence is available 624 625 626

See [3.680]. Broadway Approvals v Odhams Press [1964] 2 QB 683. See further London Artists Ltd v Littler [1969] 2 QB 375 at 393.

627 628

Sutherland v Stopes [1925] AC 47 at 62. Griffith v Australian Broadcasting Corporation [2010] NSWCA 257 at [54]; Trad v Harbour Radio Pty Ltd [2011] NSWCA 61 at [57]; Spiller v Joseph [2010] 3 WLR 1791.

629 630

E Hulton & Co v Jones [1910] AC 20; Lee v Wilson (1934) 51 CLR 276 at 287-292. ACT: s 139C; NT: s 29; SA: s 30.

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to those who have only taken a subordinate part of in disseminating it. The section proceeds to provide a non-exhaustive list of examples of parties who are regarded as subordinate distributors, namely: • a bookseller, newsagent or news vendor; • a librarian; • a wholesaler or retailer the matter; • a provider of postal or similar services; • a broadcaster of a live programme (whether by television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; • a provider of services consisting of (i) the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded or (ii) the operation or provision of any equipment, system or service by means of which the matter is retrieved, copy, distributed or made available in electronic form; • an operator of, or provider of access to, a communication system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or, • a person who, on the instructions or at the direction of another person, prints or producers, reprints or reproduces, or distributes the matter for or on behalf of that other person. A “broadcaster of a live programme (whether by television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter” may include a broadcaster relaying content that originates from another broadcaster. Whether the relaying broadcaster has “effective control” over the person who makes the defamatory statement will depend upon the circumstances. Example

Thompson v Australian Capital Television Pty Ltd [3.1260] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 The programme The Today Show was broadcast live to air from the studios of Channel 9 in Sydney. Pursuant to a licence agreement, the programme was received by microwave link at Channel 7’s transmitting site in the Australian Capital Territory and relayed from there by a further microwave link to the studios of Channel 7 in the Australian Capital Territory. From those studios it was broadcast to viewers in the Australian Capital Territory and nearby parts of New South Wales. The programme in question included a live interview with a young woman during which it was alleged that her stepfather had committed incest with her and had fathered her child. The stepfather sued Channel 7 and Channel 7 pleaded, inter alia, the defence of innocent dissemination.

[3.1260] 129

Australian Media Law Thompson v Australian Capital Television Pty Ltd cont. The High Court held that while Channel 7 did not participate in the production of the original material constituting the programme, it had the ability to control and supervise the material it televised. It was true that time did not permit monitoring the content of the programme between its receipt at the transmitting site and its telecast from the studios in the Australian Capital Territory, but it did not follow that Channel 7 was merely a conduit for the programme and hence a subordinate disseminator. It was Channel 7’s decision that the telecast should be near instantaneous, an understandable decision given the nature and title of the programme, but its decision nevertheless. Given that the nature of a live to air current affairs programme carries a high risk of defamatory statements being made, it would have been curious if Channel 7 could claim to be a subordinate disseminator simply because it adopted the immediacy of the programme. The defence therefore failed.

[3.1270] This case was decided in relation to an “innocent dissemination” defence under one of the previous defamation statutes, pursuant to which the relevant question was whether there was effective control over the content of the publication. Nevertheless, it might be argued that in such circumstances there was equally effective control over the person making the defamatory statement. Similar questions may be raised in relation to, for example, television or radio talkback programmes. It might be thought that a broadcaster of such a show has no effective control over the callers or interviewees who contribute to the show, and for that reason such a broadcaster should be regarded as a subordinate disseminator. Once again time would not allow a proper monitoring of the statements made by contributors for defamatory content. However, in such a case it is possible to raise a similar argument to that which was accepted in Thompson v Australian Capital Television. Talkback programmes have the same propensity for attracting defamatory content, perhaps an even greater propensity. Moreover they clearly have control over the topics that they raise for discussion by their callers or guests. In other words, it is a risk that broadcasters choose to take when they make the business decision to broadcast such shows, and to feature particular topics for discussion. In effect, in some cases they may be inviting defamatory statements. In such a case, the broadcasters cannot claim that they were merely innocent disseminators because they had no effective control over the makers of those statements and the words they might say. The position might be different where, for example, a sports reporter is conducting a post-match interview and the interviewee unexpectedly makes a defamatory statement, or a radio station is broadcasting a less volatile programme, such as a gardening or pet advice show, and a caller or guest makes an unexpected defamatory remark. By contrast, it may be that an internet service provider who exercises no editorial control over content on its bulletin board may be seen as an innocent disseminator, provided any ignorance of defamatory content was not negligent in the circumstances. 631 One relevant factor for this question may be the practicality of monitoring a large volume of material and the 631

See furrther Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY) (1991).

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technology required. The defence may also be available to a search engine for the period prior to notification. 632 However, the defence would clearly not be available where a service provider or search engine has been advised of the presence of defamatory material and has failed to remove it within a reasonable time. 633

Triviality [3.1280] Section 33 of the uniform defamation legislation 634 provides a defence where the circumstances of the publication are such that the person defamed is unlikely to sustain any harm. The principles governing this section may be listed as follows. 635 First, the section requires an examination of the circumstances at the time of the publication and a consideration respectively of the likelihood of harm. 636 Subsequent acts or statements need or can have only limited bearing on the question. 637 Secondly, for this defence to apply, the triviality must relate to the circumstances “of the publication” and not, for example, the reputation of the person defamed, such as a prior tarnished reputation. 638 Those circumstances extend beyond the content of the publication itself and include the occasion and surrounding circumstances of the defamatory statements. 639 Circumstances “of the publication” may therefore include, for example, the extent of the publication, the identity of the recipients and any special knowledge they may have had of the defamed person, and the defamatory nature of the imputation measured against the size of the audience. 640 As such the defence may have limited relevance for the media for defamatory matter published to the general public, as opposed to, for example, defamatory words spoken to a couple of friends in a bar. 641 Circumstances “of the publication” may, however, not be sufficiently wide to encompass the previous bad reputation of the plaintiff. 642

632 633

Bleyer v Google Inc LLC (2014) ALR 529 (NSWSC). Trkulja v Google (No 5) [2012] VSC 533 at [41].

634 635 636 637

ACT: s 139D; NT: s 30; SA: s 31. See Barrow v Bolt [2015] VSCA 107 at [34]-[38] per Kaye JA. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 799.

638 639 640 641

Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947. Barrow v Bolt [2013] VSC 599 at [62]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. See, for example, Cornes v Ten Group Pty Ltd [2011] SASC 104 at [113]. Cf Barrow v Bolt [2013] VSC 599 where a journalist successfully relied on the defence in relation to “mild” defamatory imputations about a complainant to the Australian Press Council published to a “minute” audience consisting of the journalist’s employer and an officer of the APC. Jones v Sutton (2004) 61 NSWLR 614, 621 [30]; King and Mergen Holdings v McKenzie (1991) 24 NSWLR 305 at 309–310; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Rep 68-948.

642

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Thirdly, “unlikely to suffer any harm” does not mean “more probable than not” – instead, the defendant must demonstrate that there is an “absence of a real chance” or “the absence of a real possibility of [any] harm”. 643 Fourthly, the defendant bears a heavy onus to negate not merely that there would be substantial harm, but that there would be harm at all. 644 In this connection, it remains to be settled whether “harm” means only injury to reputation or whether it includes injury to feelings. 645 On the one hand the New South Wales Court of Appeal held in Morosi v Mirror Newspapers Ltd that the equivalent of s 33 could not be relied on based on the plaintiff’s existing bad reputation because his feelings (as opposed to his reputation) were likely to be hurt when he found that bad reputation spread across a newspaper. 646 By contrast, a differently constituted New South Wales Court of Appeal in Jones v Sutton suggested that whether or not feelings were hurt was a matter for damages but was irrelevant to s 33. 647 The issue is complicated from a statutory interpretation perspective because the use of the words “the harm” in s 34 and s 36 suggests that “any harm” in s 33 includes injury to feelings and distress whereas the use of the term “harm in” s 11 supports the contrary position. 648 This is because s 11(3) refers to the court considering the “extent of harm” in each relevant Australian jurisdiction for the purposes of deciding which area the harm as close connection, thus suggesting that “harm” as used in the uniform defamation legislation must mean harm to reputation since harm to feelings does not differ across various jurisdictions. 649 Final determination of the issue will need to reconcile two relevant considerations: the fundamental basis of defamation is damage to reputation in the eyes of reasonable ordinary members of the community, not the hurt feelings of the plaintiff. Nevertheless, it is well recognised that one of the objectives of the award of damages is compensation for the distress suffered by the plaintiff as a result of the publication of the defamatory material. 650

Consent [3.1290] There is no defence of consent under the uniform defamation legislation. However, under the common law, there is a defence that the plaintiff expressed or impliedly consented to the act being done towards him or her of which he or she complains. However, the consent must be to the publication of the particular imputation which was conveyed. 651 The defence 643 644 645 646 647

648 649 650 651

Jones v Sutton (2004) 61 NSWLR 614 at 624. Skalkos v Assaf (2002) Aust Torts Reports 81-644 (NSWCA); Szanto v Melville [2011] VSC 574 at [157]. Barrow v Bolt [2015] VSCA 107 at [44]. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. Jones v Sutton (2004) 61 NSWLR 614 at 623; but see Barrow v Bolt [2015] VSCA 107 at [49]. See also the discussions in Szanto v Melville [2011] VSC 574 and Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70, neither of which states a concluded view. Barrow v Bolt [2015] VSCA 107 at [51]. Barrow v Bolt [2013] VSC 599 at [66]. See Barrow v Bolt [2015] VSCA 107 at [52]-[56]. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 525 per Dixon J; Moore v News of the World Ltd [1972] 1 QB 441 at 448.

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does not mean that if there is consent to publication of one kind, there will be a voluntary assumption of risk that the publication will convey an imputation which was not anticipated. 652 Example

Ettingshausen v Australian Consolidated Press Ltd [3.1300] Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, 11 March 1993). The plaintiff, a member of the touring Kangaroos Rugby League team was photographed naked under a shower. The defendant subsequently published a photograph in its magazine HQ which, while grainy, was capable of being interpreted as depicting the plaintiff’s penis. The plaintiff alleged that while he knew that the photographer was the official team photographer, and that he intended to use photographs taken on the tour in a book to be published for a charity, he assumed that the photographer would “choose wisely” which photographs would be used in the book, that they would be “in good taste” and that he would be informed if any photograph of him in the book was to be produced elsewhere. Hunt CJ in CL of the Supreme Court of New South Wales held that for the defence of consent the defendant must establish that the plaintiff had consented to the act being done towards him or her of which he or she complains. The first of the acts of which the plaintiff complained was that the photograph was published in a context which conveyed the imputation that he had consented to its publication showing his penis. It was his consent to that act which the defendant was required to establish. Any implied consent by the plaintiff to the reproduction of the photograph in a publication with a widespread readership was not a consent to the publication of everything which the photograph may show. There was nothing in the evidence to suggest that his consent went so far. Therefore it was not sufficient for the defendant to establish that, having consenting to the photographer taking the photograph, the plaintiff had voluntarily assumed the risk that the photographer would act so irresponsibly so as not to crop the photograph to be reproduced in his book so that it would not show his penis. Further, while the plaintiff may have consented to the reproduction in a magazine of a photograph of him which had already appeared in a book being published for charity (for example, by way of publicity for the book), there was no evidence that the plaintiff had consented to the reproduction in a magazine such as the defendant’s magazine of any photograph which had not already passed a test of good taste which would be expected for photographs included in a book being published for charity.

[3.1310] It may not be sufficient for the defence that the plaintiff merely allowed himself or herself to be interviewed, especially where the plaintiff does not see the interview “written up” before publication. Moreover, it may not be sufficient for the defendant to invite the plaintiff to 652

Ettingshausen v Australian Consolidated Press Ltd (unreported, NSW Supreme Court, Hunt CJ in CL, 11 March 1993).

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repeat a defamatory remark in the presence of another if such a challenge is interpreted as merely a mark of defiance rather than a consent. 653 In jurisdictions which allow jury trials, whether there was consent to the imputation and whether that consent was exceeded or not is a question of fact for the jury.

Remedies Damages Purpose of damages [3.1320] For disputes that proceed to court, the remedy usually sought by a defamed person is an award of damages. Since defamation is a tort, the rules of causation and remoteness apply in the normal way. An award of damages has three overlapping purposes: vindication of the plaintiff’s reputation, consolation for the plaintiff’s personal distress and hurt caused by the publication, and reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation. 654 Injury to the plaintiff’s feelings includes the anxiety and uncertainty associated with litigation properly undertaken to vindicate the plaintiff’s reputation. 655 Substantial damages may be appropriate where vindication is of particular importance in the circumstances, such as where the plaintiff’s professional reputation and personal honesty have been seriously impugned. 656 Further, economic loss may also be recovered where, for example, the defamatory publication was a cause of the plaintiff being dismissed from his or her position. 657 Significance may also be placed on the defendant’s standing in the community and the authority ordinarily attached to his or her statements, as well as if the statements are published in the course of a concerted campaign which may have a cumulative effect. 658 Compensation here is a solatium rather than a monetary recompense for harm measurable in money. 659 This is because, unlike other injuries where the loss may be able to be assessed with some precision, it is impossible to ascertain exactly how far other people’s minds have been affected or to equate damage to reputation to a sum of money. Assigning a sum of money as sufficient to remedy personal distress and hurt and harm to personal and/or professional reputation translates losses which have no market value into amounts of 653 654

657

Orr v Isles [1965] NSWR 677 at 694. Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 60. See also Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150 per Windeyer J; Humphries v TWT Ltd (1993) 120 ALR 693 (Fed Ct (FC)); Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90. Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150. Crampton v Nugawela (1996) 41 NSWLR 176 (CA) (imputations caused plaintiff to lose the previous eminent and honoured position he had held in his field in this country and prevented him from obtaining a more eminent and honoured position internationally). Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.

658 659

Chapman v Conservation Council (SA) (2002) 82 SASR 449. Uren v John Fairfax & Sons Pty Ltd (1965) 117 CLR 118 at 150 per Windeyer J.

655 656

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money. 660 The best that can be achieved is to have in mind a wide bracket within which any sum could be regarded by the person fixing the compensation as not unreasonable. 661 It should be borne in mind, however, when dealing with defamation in a permanent form, such as may be published by the media, that compensation for harm to reputation must not only cover the estimated sum of past and future losses but cover also the case of that libel or defamation, driven underground by the action, emerging from its lurking place at some future date so that the plaintiff may be able to point to a sum awarded which is sufficient to convince a bystander of the baselessness of the charge. 662 Where a plaintiff is a trading company and is able to sue under the uniform defamation legislation, different considerations apply. A company cannot be injured in its feelings, only its pocket. Its reputation can be injured but that injury must sound in money. Nevertheless, the injury need not necessarily be confined to the loss of income, but may also include damaged goodwill. 663

Calculation of damages [3.1330] Even in those jurisdictions in which the action may be heard before a jury, 664 it is the judge who has the task of calculating the appropriate measure of damages. 665 The uniform defamation legislation provides a guideline to the extent that the court must ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 666 It would be appropriate, for example, for a court to have regard to current level of awards for pain and suffering in personal injury claims to ensure that there is a rational association between the injury to reputation and the amount of damages awarded. 667 However, the award of damages is to provide reparation for the harm done to the particular plaintiff’s reputation, reflecting the subjective effect of the defamation on the particular plaintiff. It follows that drawing direct comparisons between particular cases of defamation are apt to mislead, just as the drawing of direct comparisons in personal injuries cases can mislead. 668 A judge may express a low opinion of the plaintiff’s claim by making its award contemptuously small. The uniform defamation legislation also provides that damages for non-economic loss are limited to a maximum of $250,000 or such other amount as may be adjusted annually in accordance with the percentage change in the average weekly total earnings of full-time adults over the preceding four quarters as calculated by the Australian 660 661

Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349. Cassell & Co v Broome Ltd [1972] AC 1027 at 1085 per Lord Reid.

662 663

Cassell & Co v Broome Ltd [1972] AC 1027 at 1070. Lewis v Daily Telegraph [1964] AC 234 at 262; Australian Broadcasting Commission v Comalco (1986) 12 FCR 510 at 599.

664 665 666

Namely New South Wales, Queensland, Tasmania, Victoria and Western Australia. See DA: s 22(3). DA: s 34; ACT: s 139E; NT: s 31; SA: s 32.

667 668

Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 56-60. Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 350.

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Statistician. 669 Further, in awarding damages the judge must disregard the malice or other state of mind of the defendant at the time of the publication except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 670 The general rule that tortfeasors must take their victims as they find them applies to defamation. Accordingly, a damages award may be increased where the plaintiff was of a particularly good reputation, 671 or was particularly susceptible to criticism. 672

Aggravated damages [3.1340] Aggravated damages may also be awarded where the plaintiff’s hurt has been increased by the conduct of the defendant, 673 including conducting a defence where there was behaviour that was in some way unjustifiable, improper or lacking in bona fides. 674 This may be contrasted with a bona fide defence raised properly or justifiably in the circumstances which are known to the defendant, and any evidence given honestly in support of that defence, which cannot be taken into account when deciding damages. 675 Persistence in a plea of justification does not necessarily amount to a lack of bona fides, impropriety or unjustifiability. It may, however, increase the scope of the publication and the effect on those who read/heard/saw it and properly result in compensation for continuing harm as a component of normal compensatory damages. 676 A failure to apologise or retract may warrant aggravated damages where the failure amounts to conduct which is in some way unjustifiable, improper or lacking in bona fides. 677 This includes a situation where the defendant rejects the plaintiff’s request for an appropriate apology and instead makes a deficient or incompetent “apology”. 678 Mere negligence in the conduct of a journalist, such as failure to check a source or follow up a lead will not be sufficient to support a claim for aggravated damages. 679 Instead, gross negligence or “reckless disregard of an appreciable risk” is required. 680 669

DA: s 35; ACT: s 139F; NT: s 32; SA: s 33.

670

DA: s 36; ACT: s 139G; NT: s 33: SA: s 34. Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. Humphries v TWT Ltd (1993) 120 ALR 693 at 706.

671 672 673 674 675 676 677

678

679 680

Lamb v Cotogno (1987) 164 CLR 1 at 8; Cassell & Co v Broome Ltd [1972] AC 1027 at 1071, 1125. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 248-250; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 495-497; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653. Triggell v Pheeney (1951) 82 CLR 497 at 514. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 237-238 per Toohey J (with whom Dawson and McHugh JJ concurred). Howe v Lees (1910) 11 CLR 361 at 373; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 660, 665; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77 at 78; cf Edginton v South Australian Telecasters Ltd (1986) 126 LSJS 254 at 258-259. Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312 (purported “apology” asserted a lack of intent to convey defamatory meaning but scoffed at suggestion the imputations were conveyed, imputed undue sensitivity to plaintiff, hinted that the complaint was merely that of lawyers and thereby not genuine, and did not expressly deny the allegations previously made – damages award of $40,000 increased by further $5000 for arrogant and incompetent “apology”). North Queensland Newspaper Co Ltd v Kendell (unreported, Qld Court of Appeal, 12 May 1994). David Syme & Co Ltd v Maher [1977] VR 516.

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Again, since the basis for the award of such aggravated damages is the increase in injury to the plaintiff’s feelings, such damages are not available to a plaintiff which is a corporation that is able to sue. 681 Falsity of the matter complained of is a matter which goes to aggravated damages, rather than ordinary compensatory damages. 682 Furthermore, falsity is relevant only so far as it affects the imputations upon which the plaintiff relies: the falsity of any other part of the report is irrelevant to the issue of aggravated damages. 683 Under the uniform defamation legislation the maximum for damages for non-economic loss of $250,000 or such amount as has been adjusted may be exceeded if, and only if, the court is satisfied that the circumstances of the publication are such as to warrant an award of aggravated damages. 684

Exemplary or punitive damages [3.1350] The uniform defamation legislation now provides that exemplary or punitive damages, which are normally designed to punish the defendant and to deter him or her from repeating the conduct or profiting from the wrong, cannot be awarded by the judge in a defamation action. 685

Mitigation [3.1360] The uniform defamation legislation provides a non-exhaustive list of matters that may be admitted in evidence on behalf of the defendant in order to mitigate the damages to be awarded, namely that: • the defendant has made an apology to the plaintiff about the publication of the defamatory matter; • the defendant has published a correction of the defamatory matter; • the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; • the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or • the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. 686 681 682 683 684

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510. Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77; Packer v Australian Broadcasting Corporation (1993) 116 FLR 306 at 312. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 77. DA: s 35(2); ACT: s 139F(2); NT: s 32(2); SA: s 33(2).

685

DA: s 37; ACT: s 139H; NT: s 34; SA: s 35.

686

DA: s 38; ACT: s 139I; NT: s 35; SA: s 36.

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The apology or correction must seek to undo the harm caused by the publication and not merely say that the publication was wrong. 687 Neither must it consist merely of a retraction some time after, with less prominence than the original publication. 688 The uniform defamation legislation provision expressly states that other matters may be pleaded in mitigation. Thus, for example, while evidence that the plaintiff was of particularly good character may serve to increase the damages awarded, the defendant may seek to mitigate the damages by leading evidence that before the publication was made the plaintiff did not enjoy a high reputation. A defendant is also entitled to rely in mitigation on any other evidence properly before the court, including evidence which has been primarily directed to, for example, fair comment or justification, 689 including evidence relevant to the truth of contextual imputations. 690 In effect, the defendant will be alleging that any reputation injured was of small value in the first place. 691 However, mere evidence of rumours of bad character will not suffice. 692 However, when evidence of character is given, it must be directed to that sector of the plaintiff’s character which is relevant. 693 Thus, if the defamatory matter imputes theft, the relevant sector is the plaintiff’s character for honesty and not, for example, his or her character as a motorist or their sexual morality. 694 Similarly, where the relevant sector was the plaintiff’s reputation as a husband who was loving, responsible and considerate towards his wife, evidence of the plaintiff committing social security fraud was properly discounted from those matters which when found to be true mitigated the damages to be awarded. 695 A consequence of the uniform defamation legislation adopting the common law meaning of justification, that is truth alone, is that now in all jurisdictions (including those that previously required truth and public benefit/interest) a defendant cannot allege truth in mitigation of damages. This is because, if proved, truth would be a complete defence. However, evidence lead in partial justification, where a defence of justification has failed in that the defendant has only been able to prove the truth of some but not all of the imputations in the published matter, may nevertheless be relied upon in mitigation of damages. 696 687 688 689 690

Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1. Lawrie v NT News Services Pty Ltd (1985) 82 FLR 70. Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 at 120. Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90.

691 692

Scott v Samson (1882) 8 QBD 491. Scott v Samson (1882) 8 QBD 491; Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 (unsuccessful attempt to rely on a large bundle of 60 newspaper articles to establish a prior tarnished reputation). Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at [16]-[23]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [162]. Plato Films Ltd v Speidel [1961] AC 1090 at 1141; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801, 805-806. Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [31], [77]. In that case it was held that the mitigory effect of the findings of fact of the plaintiff’s “disgraceful” conduct towards his wife almost wholly negated the impact of the untrue imputations upon which the plaintiff relied and therefore justified the comparatively small damages awarded. Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [47], [59], [86].

693 694 695

696

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Nevertheless, a defendant who does not plead what would be a defence should not be permitted to elicit the same facts to reduce damages. 697

Injunction [3.1370] In some rare cases, a forewarned plaintiff may be able to prevent an upcoming publication by means of an interlocutory injunction. The effect of such an injunction is to preserve the status quo until the final determination of the parties’ rights at the trial. Normally in order to obtain an interlocutory injunction a plaintiff is required to show only that there is a serious question to be tried between the parties and that the balance of convenience lies in favour of the plaintiff: that is, that the injury which the plaintiff is likely to suffer if an injunction were refused outweighs the injury which the defendant is likely to suffer if the injunction were granted. 698 However, courts approach the power to grant interlocutory injunctions in the case of defamation actions with great caution, and will do so only in very rare cases. 699 The reason for this caution is that in the case of defamation such an injunction represents a fetter on freedom of speech, particularly when an action for damages may later be brought in any event. It is one thing to impose civil or criminal consequences for an abuse of free speech, but quite another for a court to interfere with the right of free speech by prior restraint. 700 In other words, it is usually better that some plaintiffs should suffer some untrue damage to reputation for which damages will be paid than for members of the community in general, including the news media, to suffer restraint of free speech, upon which our society places very great importance. 701 In the case of an interlocutory injunction sought to restrain defamation, in addition to showing that there is a serious question to be tried, and that damages will not be an adequate remedy for the likely injury to be suffered so that the balance of convenience favours the granting of an injunction, further factors must be taken into account. The major factors to consider are: • the general public interest in free speech. • the fact that in the defamation context, the outcome of the trial is especially likely to turn upon issues that are unresolved. Thus, for example, until a defence of justification is resolved it will not be known whether the publication has invaded a legal right of the plaintiff. • that a defence of justification is typically an issue for jury decision. 697

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 738; Age Co Ltd v Elliott (2006) 14 VR 375 at [21]-[22].

698

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [19] (per Gleeson CJ and Crennan J), [65] (per Gummow and Hayne JJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Bonnard v Perryman [1891] 2 Ch 269 at 284-285; Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 544; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 172. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [31]-[32] (per Gleeson CJ and Crennan J). See also Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69. National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 764.

699

700 701

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• that the defamed person’s character may be found to be such that, even were the publication defamatory, only nominal damages would be awarded. For instance, to say of a convicted murderer that he or she was responsible for another murder, even if found to be defamatory, is unlikely to result in a substantial award of damages. 702 It has been said 703 that an injunction ought not to be granted unless: (1)

a subsequent finding by a jury that the matter complained of was not defamatory of him or her would be set aside as unreasonable;

(2)

there is no real ground for supposing that the defendant may succeed upon any defence of justification, 704 privilege, or comment/opinion; and,

(3)

the plaintiff is likely to recover more than merely nominal damages. 705

However, a series of cases advocated that a “flexible” approach be taken, balancing the elements so that the weight of one or more may compensate for the lesser weight of another. 706 Such an approach has now been criticised in the High Court, partly because it may lead too readily to an assumption that all that is involved is the exercise of an unbounded discretion, which thereafter is insusceptible of appellate interference. 707 Although there are instances where an interlocutory injunction has been granted, 708 the public interest in free speech is an important overriding consideration which makes it difficult to obtain an interlocutory injunction. 709 For example, as a majority of the High Court recognised

702 703

704

705

706

707 708

709

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [16]-[17]; Bonnard v Perryman [1891] 2 Ch 269 at 283-285. Stocker v McElhinney (No 2) (1961) 79 WN (NSW) 541 at 544; Bonnard v Perryman [1891] 2 Ch 269 at 284-285; Lennox v Krantz (1978) 19 SASR 273 at 276; Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349; Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 201, 203-206. See, for example, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69. See, for example, Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [33], [89] (if the injunction were not granted, the general character of the plaintiff, who was a convicted murderer serving a life sentence who had confessed to another murder, may have assumed such importance at trial that the imputations that he was suspected of the murder of the Beaumont children and that he was a multiple murderer might attract an award of only nominal damages). Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747; Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440. Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [83] (per Gummow and Hayne JJ). See, for example, Hemmes v Seven Network Ltd [2000] NSWSC 246 (report alleging plaintiff wrongly failed to acknowledge paternity of two children – application granted due to absence of any matter of public interest) and Australian Broadcasting Corporation v Hanson (unreported, Qld Court of Appeal, 28 September 1998) (song satirising politicians’ policies and opinions – application granted for “cheap denigration”). See, for example, Meriton Apartments Pty Ltd v SBS Corp [2002] NSWSC 915 (report alleging that plaintiff responsible for dangerous condition of building – injunction refused due to arguable defences and overriding principle of freedom of public discussion of matters of public interest).

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in ABC v O’Neill 710 while sometimes “trial by media” may be rightly condemned, that cannot be allowed to obscure the reality that investigation and exposure of wrongdoing is not the exclusive province of police and the criminal justice system. Sometimes criminal charges are laid following media exposure of alleged misconduct. Indeed sometimes allegations of misconduct are made against the police and public officials. In addition, the balance may be strongly against granting an interlocutory injunction where there has already been widespread access to the publication, such as where a book has already been made available electronically and hard copies have already been distributed to bookshops, so that the topic has already been extensively published. 711 In some jurisdictions the changes made in the uniform defamation legislation will mean that it will be harder to obtain an interlocutory injunction to restrain defamatory matter being published than was previously the case. Previously, in Queensland, Tasmania, the Australian Capital Territory and New South Wales, the justification defence required truth and public benefit or interest. At an interlocutory stage a plaintiff could argue that the proposed publication, even if shown to be true, concerned private affairs and therefore was not for the public benefit or in the public interest. 712 Now that all jurisdictions have adopted the common law meaning of justification, this argument is no longer available and if there are any prospects of the defamatory allegations being proved an application for an interlocutory injunction should be dismissed. A further practical limitation of these principles has been demonstrated by an attempt to restrain publication of defamatory material on the internet. 713 The application was refused on the ground that it would effectively restrain publication to any place in the world on the basis of New South Wales law when it could not be assumed that the law of defamation in other countries was co-extensive with the law in New South Wales. 714 Nor was it practicable, due to the nature of the internet, to restrict the operation of the injunction to only New South Wales. These special principles applicable in the case of an interlocutory injunction restraining defamation cannot be avoided by the simple expedient of pleading the plaintiff’s claim in some cause of action other than defamation, such as injurious falsehood or Australian Consumer Law (ACL), s 18. 715 The special principles will not apply, however, where the cause of action 710

711 712

713 714

715

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [26] per Gleeson CJ and Crennan J (Gummow and Hayne JJ agreeing at [87], [89] (report alleging convicted murderer had committed another murder). See, for example, Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [85]-[86]. See, for example, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 (no prospect of justifying allegations of sexual activities of former Australian cricket captain because publication was not in the public interest in the sense of promoting the public good). Macquarie Bank Ltd v Berg [1999] NSWSC 526. Macquarie Bank Ltd v Berg [1999] NSWSC 526 at [14]: “It may very well be that, according to the law of the Bahamas, Tazhakistan, or Mongolia, the defendant has an unfettered right to publish the material” (per Simpson J). Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350-351; Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327 at 333-334.

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other than defamation does not involve any concept of free speech, such as a conspiracy between the author and the publisher of a newspaper article that has the sole or dominant purpose of injuring the plaintiff. 716

Costs in proceedings [3.1380] The objective of encouraging early settlement is now supported in the uniform defamation legislation, which provides for costs to be awarded taking into account matters including the conduct of the parties (such as a misuse of a superior financial position to prolong proceedings) and any other matters considered relevant. 717 One such matter might be (as under the previous New South Wales provision on which the uniform provision is based) the fact that costs may exceed the damages awarded. Further, unless the interests of justice require otherwise, where proceedings are successful the plaintiff must be awarded costs on an indemnity basis if the court believes the defendant unreasonably failed to make a settlement offer or failed to accept a settlement offer by the plaintiff, whereas if the proceedings are unsuccessful, the defendant must be awarded costs on an indemnity basis where the plaintiff unreasonably failed to accept a settlement offer by the defendant. “Settlement offer” includes a reasonable offer to make amends, where they are made before or after the proceedings are commenced.

Mediation or other alternative dispute resolution [3.1390] The offer of amends processes discussed above involve settlement of disputes by the parties without recourse to court. An additional alternative to court action would be for the parties to submit the dispute to resolution by mediation. Mediation is a consensual dispute resolution process where a neutral third party assists the parties to negotiate a mutually acceptable resolution of matters in dispute. 718 The advantages of mediation include the speed, lower costs, flexibility, informality, confidentiality and the consensual and creative nature of settlements. 719 However, while mediation or other dispute resolution techniques might offer a speedier and cheaper means of resolution, they are not a panacea for all cases of defamation. There may be practical problems involved in persuading some parties to submit to this method of resolving their dispute, including antagonism between the parties which may lead one or other to only be satisfied with a court verdict, and there may also be difficult questions of law which, while not precluding mediation, may create difficulties in the process. 720 Also, in some cases it may be doubted by the plaintiff that it is a means of obtaining effective vindication, particularly where any agreed settlement is kept private and does not involve public restoration of the plaintiff’s reputation. Nevertheless, in its report on 716

Gulf Oil (Great Britain) Ltd v Page [1987] 1 Ch 327; National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747.

717 718

DA: s 40; ACT: s 139K; NT: s 37; SA: s 38. See, for example, New South Wales Law Reform Commission, Training and Accreditation of Mediators, Report 67 (1991), at [2.5].

719 720

New South Wales Law Reform Commission, Defamation, Report 75, (1995), at [14.4]. New South Wales Law Reform Commission, Defamation, Report 75, (1995), at [14.6].

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defamation, the New South Wales Law Reform Commission strongly supported the use of mediation in the resolution of defamation disputes. 721

Other causes of action [3.1400] There are two other causes of action which may be invoked in appropriate circumstances to protect a person’s reputation: the prohibition of misleading or deceptive conduct under the Australian Consumer Law, s 18 and the tort of injurious falsehood.

Misleading or deceptive conduct Cause of action [3.1410] In some circumstances, a publication may not only injure the reputation of a person, it may also constitute conduct that is misleading or deceptive or likely to mislead or deceive in trade or commerce. 722 In the case of a media defendant, any publications will constitute conduct in its trade or commerce. Prima facie, therefore, in the case of a publication that misleads or deceives, or is likely to mislead or deceive an aggrieved person could bring an action under the Australian Consumer Law, s 18 723 in order to obtain a remedy of damages or injunction. 724 Bringing an action for misleading or deceptive conduct presents the aggrieved party with great advantage over an action for defamation, not least of which because the misleading or deceptive conduct legislation does not reproduce the defences to defamation which seek to strike a balance between injury to reputation and freedom of speech. 725 This section may have increased significance as a means of vindicating reputation

721 722

723

724

725

New South Wales Law Reform Commission, Defamation, Report 75, (1995), ch 14. In Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 at 29 it was noted that in some cases there is no definable boundary between conduct which is misleading or deceptive and material which is defamatory. The Australian Consumer Law (ACL) is both enacted as part of Commonwealth law as Sch 2 to the Competition and Consumer Act 2010 (Cth) and incorporated into the laws of the States and Territories: see Fair Trading Act 1992 (ACT), s 7; Fair Trading Act 1987 (NSW), s 28; Consumer Affairs and Fair Trading Act (NT), s 27; Fair Trading Act 1989 (Qld), s 16; Fair Trading Act 1987 (SA), s 14; Australian Consumer Law (Tasmania) Act 2010 (Tas), s 6; Fair Trading Act 1999 (Vic), s 9; Fair Trading Act 2010 (WA), s 19. At Commonwealth level the Australian Consumer Law applies to conduct by corporations or natural persons where there is other Commonwealth jurisdiction: see Competition and Consumer Act 2010 (Cth), s 6. All other cases of conduct by natural persons are governed by State or Territory law. In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [77] the New South Wales Court of Appeal rejected a submission that the equivalent of s 18 should be read down so as not to apply to publications otherwise covered by defamation. In TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [80]-[92] the New South Wales rejected a submission that s 18 should not apply where a reporter used misleading and deceptive conduct to gain entry to the plaintiff’s property in order to conduct an “ambush interview” confrontation on the grounds that the subsequent report was found to be true and in the public interest, even though there was a connection between the damages awarded for the misleading and deceptive conduct and the injury to the reputation of the plaintiff arising from the confrontation.

[3.1410] 143

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since s 9 of the uniform defamation legislation provides that, generally speaking, a corporation now does not have a cause of action for defamation, unless it is an “excluded corporation.” 726

Exemption A media safe harbour [3.1420] The absence of any defences to strike a balance with free speech means that the use of ACL s 18 against a media defendant could have serious implications for the free flow of information to the public. Accordingly, ACL s 19 provides a “safe harbour defence” for the media, which states that s 18 does not apply to a publication by an “information provider” if: • the information provider made the publication in the course of carrying on a business of providing information; or • if the information is the ABC, SBS or the holder of a licence under the Broadcasting Services Act 1992 (Cth) and the publication was by way of a radio or television broadcast. Section 38 of the ACL provides a similar exemption from the operation of the specific prohibitions against misleading or conduct, such as false or misleading representations about goods or services (ACL s 29). An “information provider” Is defined as a person who carries on a business of providing information. 727 It would therefore include, for example, newspapers, magazines, and television and radio broadcasters, 728 as well as the journalists supplying stories for publication by those media organisations. 729 It will also include a person who carries on the business of freelance journalism. 730 It would thus cover, for example, the transmission by a freelance journalist to a media outlet of an article for publication. 731 However, it is unlikely to cover, for example, an online blogger unless that person can be said to be conducting a business of providing information. The media safe harbour only provides an exemption from liability for misleading or deceptive conduct. It does not provide an exemption for a media organisation which is an accessory to such a contravention. Accordingly, if a news organisation aids, abets or induces somebody who is not covered by ACL, s 19 to make statements in trade or commerce which are misleading or deceptive and breach ACL, s 18, then the news organisation may be liable as being “involved in” that contravention within the meaning of s 2 of the ACL. 732 This exemption greatly restricts potential media liability for misleading or deceptive conduct in circumstances where there would otherwise be an action for defamation. However, the 726 727

DA: s 9; ACT: s 121; NT: s 8. See [3.520]. ACL, s 19(5).

728 729 730 731 732

See also ACL s 19(6). TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd (2008) 71 NSWLR 323 at [53]. Bond v Barry [2007] ATPR 42-187 at [35]; Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 at [36]. Bond v Barry [2007] ATPR 42-187. Bond v Barry [2007] ATPR 42-187 at [32]; Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1.

144 [3.1420]

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media safe harbour was never intended to extend to the provision of information where an information provider has what might be regarded as a commercial interest in the content of the information. 733 Accordingly, there are a number of exceptions to the exemption.

Exception: promos for forthcoming publications [3.1430] Section 19(2) of the ACL provides that the “safe harbour” exemption does not apply to the publication of an advertisement. This would include, for example, a promotional statement in a newspaper or a magazine, or on television or radio, regarding future issues of that newspaper or magazine or future programmes of that television or radio channel. 734 Thus if the “promo” contains misleading or deceptive statements that injure the reputation of a person, an action may be brought under ACL, s 18. This is so even though an action could not be brought under that section for the same statements when made in the actual programme, due to the s 19 exemption. Example

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation [3.1440] Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 The defendant broadcast a segment on its television programme The Investigators concerning the activities of the applicants, which the applicants claimed was inaccurate and unfair. There was an interview on ABC radio on the day of the broadcast which gave details of the upcoming programme. The applicants alleged that the ABC had contravened s 52 of the Trade Practices Act 1974 (Cth) and its State counterpart (the equivalents of the ACL, s 18). In the Federal Court of Australia, Wilcox J held that s 65A of the Trade Practices Act 1974 (and its State counterparts) (the equivalents of the ACL, s 19) operated to exclude statements made in the report from the operation of the prohibitions of misleading or deceptive conduct. However, the radio discussion constituted an advertisement for the television programme, which fell within the exceptions to s 65A (and the equivalent State provision). An action for breach of s 52 was therefore available as a basis for action in respect of the statements made in the radio promotion. In the circumstances, however, none of the applicants were actually named in the radio discussion and there

733 734

Second reading speech for the Statute Law (Miscellaneous Provisions) Bill (No 2) 1984 (Cth). Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265 at 280; Horwitz Grahame Books Pty Ltd v Performance Publications Pty Ltd [1987] ATPR 48,271 at 48,275; Fastways Couriers (Aust) Pty Ltd v Australian Broadcasting Corporation (unreported, Federal Court, Gummow J, 27 March 1995); Young v Munro (unreported, NSW Supreme Court, Levine J, 12 May 1995) (short promo for forthcoming A Current Affair with voiceover “Just when you thought they were behind bars they’re at it again”).

[3.1440] 145

Australian Media Law Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation cont. was no evidence of a cause or relationship between the radio broadcast and any loss or damage sustained by the applicants.

Exception: supply, or promotion of supply, of goods or services [3.1450] The “safe harbour” exemption also does not apply where there is a publication of matter in connection with the supply or possible supply of, or the promotion by any means of the supply or use of, goods or services if: • the publicised goods or services were goods or services of a kind supplied by the information provider or, if the information provider is a body corporate, by a body corporate that is related to the information provider; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of the same kind as the publicised goods or services; or • the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with, a body corporate that is related to a body corporate that supplies goods or services of the same kind as the publicised goods or services. 735 The exception of publications “in connection with … the supply or possible supply of goods or services” refers to a publication the content of which has some relationship to the supply of the goods or services in question. Accordingly, the provision of a journalistic service, for example, by transmission of an article about alleged corporate misdeeds is not a publication “in connection with … the supply of journalistic services.” The exception therefore does not apply to the provision of information articles by a freelance journalist to a media organisation. 736 The second of these exceptions to the exemption will apply where, for example, a news or current affairs programmes features a third party’s goods or services pursuant to a contract or arrangement between the programme and the third party. 737 No payment needs to be made for the goods or services being so featured. 738 Thus where in the course of such a report a misleading or deceptive statement is made which injures the reputation of a person then the exemption will not apply and an action will be available under ACL s 18.

735 736

ACL, ss 19(4), 38(3) and 160(4). Bond v Barry [2007] ATPR 42-187 at [42]-[43].

737 738

ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305. See [13.410]. ACCC v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305. See [13.410].

146 [3.1450]

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Injurious falsehood [3.1460] Unlike defamation, which protects personal reputation, injurious falsehood protects interests in the dispose ability of a person’s property, products or business. 739 Nevertheless, with the enactment of s 9 of the uniform defamation legislation companies with more than 10 employees may seek to protect their reputations through an action for injurious falsehood. 740 Indeed it may be the only avenue to do so against a media defendant which is an “information provider” unless one of the exceptions to the exemption applies. 741 The tort of injurious falsehood has four elements: • a false statement concerning the plaintiff’s goods or business; • publication to at least one person other than the plaintiff; • the defendant was actuated by malice; and, • proof of actual loss suffered as a result of the statement. 742 There are therefore a number of important differences between injurious falsehood and defamation, apart from the respective objectives of the torts. Unlike in defamation, a plaintiff suing for injurious falsehood bears the onus of proving falsity. 743 Accordingly it is not enough to show for example, that there is no evidence to support or justify an imputation in a publication. While that may be sufficient for defamation, where it is for a defendant to justify an imputation, in injurious falsehood the plaintiff must actually prove that the imputation to be false. 744 However, the absence of evidence to justify a falsehood is not without significance since if there is nothing to justify an imputation, it may take very little to establish, on balance, that the imputation is false. 745 Also unlike defamation, malice is an essential element of the injurious falsehood cause of action, and must therefore be proved by the plaintiff. In the context of injurious falsehood the notion of “malice” denotes a question of motive, intention or state of mind, involving the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person. 746 It has been described as “an intent to injure another without just cause or excuse” or “some indirect, dishonest or improper motive”. 747 The statement must be made mala fide or 739 740 741 742 743 744 745 746

747

Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at 223. See, for example, David Jones Ltd v The Australia Institute Ltd [2007] FCA 962; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395. See [3.1430]-[3.1440]. Ratcliffe v Evans [1892] 2 QB 524 at 527-528. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 406. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [30]. AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [30]. British Railway Traffic & Electric Co Ltd v CRC Co Ltd & London County Council [1922] 2 KB 260 at 269; Browne v Dunn (1893) 6 R 67 at 72; Shapiro v La Morta [1923] All ER Rep 378; Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 291. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 423.

[3.1460] 147

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with a lack of good faith: a person who acts in good faith will not be liable. 748 Since motive often must be inferred from what the defendant did or said or knew, malice is commonly proved by inference. 749 Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”. 750 As is the case with defamation, normally proof that the defendant knew that a statement was untrue will be conclusive evidence that its publication was actuated by an improper motive, although mere absence of honest belief in the truth of the statement will be insufficient. 751 Reckless indifference whether a statement is true or false may also be sufficient. 752 This is because in some cases a defendant’s recklessness may be so gross that it constitutes wilful blindness, which the law regards as equivalent to knowledge. 753 However, this does not mean that a journalist’s failure to approach the plaintiff for a comment prior to publication of a story will necessarily constitute recklessness as to the truth or falsity of statements made in the story. 754 Further, whereas defamation is actionable per se under the uniform defamation legislation, the tort of injurious falsehood requires proof of actual damage. The relevant damage must harm of a kind intended or a kind which is the natural probable consequence of the false statement, such as a loss of business. 755 Nevertheless, the requirement for actual damage does not preclude the grant of injunctive relief to restrain a threatened publication. In such circumstances it will be enough to establish a reasonable probability of such damage occurring, as opposed to the damage actually occurring. 756 It has been suggested that the restraint normally exercised in the grant of injunctive relief in defamation cases due to questions of free speech in discussion and liberty of the press do not apply in the case of injurious falsehood. 757

748 749

Joyce v Sengupta [1993] 1 All ER 897. Horrocks v Lowe [1974] 1 All ER 662 at 669.

750 751 752

Joyce v Sengupta [1993] 1 All ER 897 at 905-6. Roberts v Bass (2002) 212 CLR 1 at 31. Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; Browne v Dunn (1893) 6 R 67; Greers Ltd v Pearman & Corder Ltd (1922) 39 RPC 406 at 417; Kaye v Robertson (1990) 19 IPR 147 at 152; Joyce v Sengupta [1993] 1 All ER 897 at 905.

753 754

Roberts v Bass (2002) 212 CLR 1 at [84]. See, for example, Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [94] (a news broadcast about a warning from the Food and Drug Administration in the United States that linked sleep positioners with baby deaths and the fact that the same type of product was available in Australia was not such as to demand a comment from the manufacturer or distributor of such devices in Australia). Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 396-397 and 411-412. See, for example, Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669. Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 406 per Gummow J; Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 at [18].

755 756 757

148 [3.1460]

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Criminal defamation Common law offence [3.1470] The common law recognises four criminal libels: defamatory libel, obscene libel, blasphemous libel and seditious libel. The latter three offences are discussed elsewhere. 758 However, the first type defamatory libel is more widely known as “criminal libel” or “criminal defamation”. At common law, criminal libel involves the publication to another person in permanent form of defamatory matter concerning a living or deceased person. 759 The rationale for the offence is its supposed tendency to arouse angry passion, provoke revenge and accordingly endanger the public peace. 760 Nevertheless, the prosecution is no longer required to prove that the libel was likely to provoke a breach of the peace, 761 nor is it a defence to show that the publication had no tendency to provoke a breach of the peace. 762 It may be, however, that seriousness is now an additional element to be established. 763 The functions of defamation in criminal law differ greatly from those of defamation in civil law. A private prosecution for criminal defamation is justified only where the subject of the prosecution is such as to affect the community. It has nothing to do with vindicating or protecting the reputation of the person defamed. 764 A squabble between individuals is not the proper subject of a prosecution. 765 In the words of Lord Denning MR, such a civil defamation “does not come up to [the] degree of enormity” of criminal defamation. 766 758

See [9.340] (blasphemous libel), [9.500] (obscene libel), [10.40] (seditious libel).

759 760 761 762

Gleaves v Deakin [1980] AC 477. R v Holbrook (1878) 4 QBD 42 at 46. Williams v Spautz (1992) 174 CLR 509 at 530. R v Hardy [1951] VLR 454 at 455. This famous case arose from publication of the book Power Without Glory by Frank Hardy which depicted the life of the unsavoury John West, said to be based on John Wren who had become one of the wealthiest financiers in Australia. The report is of the summing up by the trial judge. Despite the judge ruling that the absence of a tendency to provoke a breach of peace could not be used as a defence, Hardy was acquitted by the jury after only a few minutes deliberation: see the interesting account of the trial in C Brennan, “Perfect case that had to fail” (1994) LIJ 344. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485 per Lord Denning MR; see also R v Wells Street Stipendiary Magistrate; Ex parte Deakin [1980] AC 477; Williams v Spautz (1992) 174 CLR 509 at 539 per Brennan J.

763

764 765

766

Spautz v Williams [1983] 2 NSWLR 506 at 539-540; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 287-288. Gleaves v Deakin [1980] AC 477 at 491; Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288. In Waterhouse, Hunt J (at 288) suggested that an example of an appropriate case for prosecution was where an anonymous document alleging that an anti-drugs campaigner had not been murdered by a drug cartel, as found by a Royal Commission, but by or on behalf of his wife, son or solicitor, and the accused asked a member of the Legislative Assembly in New South Wales to read the document in Parliament and to keep reading it despite any points of order that might be taken: see Grassby v The Queen (1989) 168 CLR 1 at 8; cf Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) (conviction for criminal defamation upheld where accused sent defamatory letter to employer of her ex-lover accusing him of having a heroin habit, being a liar and wishing to steal from the homes of aged residents on an estate he was employed to guard). Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 485.

[3.1470] 149

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Like civil defamation, a matter is defamatory if it is likely to cause ordinary, right thinking members of the community to think less of the person defamed or to expose him or her to hatred, ridicule or contempt. 767 Also like civil defamation, the prosecution is not required to prove an intention to defame, that the libel was false, or that the defendant knew that the libel was false. 768 However, in contrast to common law civil defamation, the offence is limited to publications in permanent form and does not extend to slander. 769 There is sufficient publication if there is communication only to the person defamed, there being no requirement that there be communication to at least one person other than the person defamed, 770 and there may be an offence where there is libel of a deceased person. 771 Originally, truth was not a defence to defamatory libel but this position was modified by a statute which introduced a defence where the publication was true and for the public benefit. 772 This statute also partially addressed the anomaly that a defendant could be found guilty of criminal libel for a publication in which he or she had taken no part and of which he or she had no knowledge by introducing a defence for the proprietors of newspapers where the matter complained of was published without the proprietor’s authority, consent or knowledge, and the publication did not arise from want of due care or caution on the proprietor’s part. 773 The common law offence of criminal libel subsists in Victoria, 774 where it is now complemented by a statutory offence. 775 The common law offence has been abolished and replaced by statutory offences elsewhere. 776

Statutory modifications and additions to the common law intent or knowledge [3.1480] The statutory offences in New South Wales, Queensland, South Australia, Tasmania, Western Australia and the Australian Capital Territory introduced a requirement of mens rea as an element of the offence. In other words, the prosecution must show both knowledge of falsity and an intention to cause serious harm or reckless indifference. 777 It is 767 768 769 770 771 772 773 774 775 776

777

R v Wicks [1936] 1 All ER 384. R v Wicks [1936] 1 All ER 384 at 386-387. R v Hepburn (1889) 15 VLR 84 at 85. R v Holbrook (1878) 4 QBD 42. R v Enson (1887) 3 TLR 366. Libel Act 1843 (Eng) (Lord Campbell’s Act), s 6. Libel Act 1843 (Eng), s 7. See, for example, King v R (1876) 2 VLR 17 at 20. Wrongs Act 1958 (Vic), s 10. Crimes Act 1900 (ACT), s 439; Crimes Act 1900 (NSW), s 529; Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365; Criminal Law Consolidation Act 1935 (SA), s 257; Criminal Code 1924 (Tas), s 196; Criminal Code 1913 (WA), s 345. Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code 1899 (Qld), s 365(1) (knowledge and either intention or “without having regard”); Criminal Law Consolidation Act 1935 (SA),

150 [3.1480]

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important to recognise the strong prospective nature of this offence. It cannot be established by proving from the vantage of hindsight that the publication did in fact cause serious harm. In the absence of admissions by the accused, each fact must be proved by inference. 778 In the Northern Territory the element of mens rea was introduced by setting out a requisite intention for which the defamatory matter was published, namely, to publish defamatory matter with an intent to cause a breach of the peace; cause loss; interfere with the free and informed exercise of a political right; deter a person from performing any duty imposed on him by law; deter any person from doing any act that he or she is lawfully entitled to do or to compel him or her to do any act that he is lawfully entitled to not do; prevent any lawful investigation or inquiry; or interfere with or to influence any juridical proceeding. 779 Moreover, intent need not be shown in the Northern Territory where a publication actually causes or is likely to cause a breach of the peace. In Victoria there are two offences following the enactment of an offence of publication of defamatory matter knowing it to be false, which stands alongside the continued operation of the common law criminal libel which does not require an intention to defame or knowledge of falsity. 780

Publication [3.1490] In New South Wales, Queensland, Tasmania, Western Australia, the ACT and the Northern Territory the common law rule that it is sufficient to publish to the person defamed has been replaced by the requirement that, like the tort of defamation, publication must be to at least one person other than the person defamed. 781

Slander [3.1500] Only Victoria has retained the limitation of the mode of publication of criminal libel to publications in permanent form. 782 The other jurisdictions contemplate the possibility of an offence for transient defamation. 783

778 779 780 781

782 783

s 257(1) (knowledge or reckless as to whether true or false, and intention to cause serious harm or recklessness); Criminal Code 1924 (Tas), s 196(1) (knowledge and either intention or “without having regard”); Criminal Code 1913 (WA), s 345(1) (knowledge or without having regard as to true or false, and intention to cause serious harm or “without having regard”). Waterhouse v Gilmore (1988) 12 NSWLR 270 at 290. Criminal Code (NT), s 204. Wrongs Act 1958 (Vic), s 10(1); see the analysis in King v R (1876) 2 VLR 17 at 20. Crimes Act 1900 (ACT), s 439(8); Crimes Act 1900 (NSW), s 529(11); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(8); Criminal Code 1924 (Tas), s 196(7); Criminal Code 1913 (WA), s 345(7). The South Australian statute does not define “publish”. See Wrongs Act 1958 (Vic), s 10 which refers to “defamatory libel” in relation to the statutory offence. Crimes Act 1900 (ACT), s 439(8); Crimes Act 1900 (NSW), s 529(11); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(8); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1); Criminal Code 1913 (WA), s 345(1).

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Defamation of the dead [3.1510] All jurisdictions other than Victoria have removed the common law possibility of criminal defamation of the dead by requiring the defamatory matter to be related to a living person. 784 In these other jurisdictions the publication of material defamatory of a dead person is relevant only to the extent that it also is referable to a living person. 785 For example, it may be sufficient to say of a deceased person that he or she was committed to a psychiatric institution, with reference to a hereditary element or quality in the condition or an express or implied suggestion that his or her children would or might inherit the condition.

Defences [3.1520] Most jurisdictions provide that a person charged with criminal libel has a lawful excuse for the publication if he or she would have a defence to the tort of defamation. 786 In Queensland, however, the statutory defence of justification, which requires proof of truth alone, has been replaced by a “modified statutory defence of justification” which requires the publication to be both true and for the public benefit. 787 In Victoria the defences to criminal libel are supplemented by statutory defences with respect to, for example, publication of reports of court and parliamentary proceedings, and publication of parliamentary papers and abstracts. 788

Defences for publishers [3.1530] An issue of some importance to media proprietors and employers is the extent to which they may be implicated in any criminal libel committed by their employees. The defence at common law introduced by Lord Campbell’s Act of the principal escaping liability where the matter complained of was published without his or her authority, consent or knowledge, and the publication did not arise from want of due care or caution on his or her part has been adopted in Victoria. 789 In the other jurisdictions protection for media proprietors may provided by the need for the prosecution to prove intent or both knowledge and intent as an element of the offence. 790 784

785 786

787 788 789 790

Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1); Criminal Code 1913 (WA), s 345(1). Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) 223. Crimes Act 1900 (ACT), s 439(2); Crimes Act 1900 (NSW), s 529(4); Criminal Code (NT), s 203; Criminal Code 1899 (Qld), s 365(3); Criminal Law Consolidation Act 1935 (SA), s 257(2); Criminal Code 1924 (Tas), s 196(3); Criminal Code 1913 (WA), s 345(3). Criminal Code 1899 (Qld), s 365(8). Wrongs Act 1958 (Vic), s 4. Wrongs Act 1958 (Vic), s 11(2). Crimes Act 1900 (ACT), s 439(1); Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1924 (Tas), s 196(1).

152 [3.1510]

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Penalties [3.1540] The penalty for criminal libel varies across the jurisdictions. In New South Wales, Queensland, South Australia, Western Australia and the Northern Territory, the penalty is three years imprisonment, 791 in the Australian Capital Territory three years imprisonment or a fine, 792 in Victoria either two years and a fine or one year with or without a fine depending upon whether the defendant knew that the publication was false 793 while in Tasmania the penalty is at the discretion of the court. 794

Private prosecutions [3.1550] In most jurisdictions a private prosecution cannot be commenced without first gaining the consent of either the Director of Public Prosecutions, 795 or a Crown Law officer. 796 Relevant questions when deciding whether consent should be granted might include whether there is a prima facie case that the defamatory statements were made and that lawful excuses may be negated, and that the intervention of criminal law is called for. The intervention of the criminal law will be called for where the defamation is so serious it requires both punishment of the offender and protection of the community, and is required in the public interest as distinct from the private interest. 797 The applicant’s inability to fund or manage civil litigation should not be a sufficient reason for prosecution. 798 The requirement that consent first be obtained is essential in view of the threat to free speech posed in some cases by the possibility of private prosecutions for criminal defamation. They help prevent such private prosecutions being used as a weapon in cases involving what may in essence only be a squabble between individuals. 799

791

Crimes Act 1900 (NSW), s 529(3); Criminal Code (NT), s 204; Criminal Code 1899 (Qld), s 365(1); Criminal Law Consolidation Act 1935 (SA), s 257(1); Criminal Code 1913 (WA), s 345(1) (summary conviction penalty of 1 year imprisonment and a fine).

792 793

Crimes Act 1900 (ACT), s 439(1). Wrongs Act 1958 (Vic), s 10.

794 795

Criminal Code 1924 (Tas), s 389. Crimes Act 1900 (ACT), s 439(4); Crimes Act 1900 (NSW), s 529(7); Criminal Code 1899 (Qld), s 365(7); Criminal Law Consolidation Act 1935 (SA), s 257(4); Criminal Code 1924 (Tas), s 196(6); Criminal Code 1913 (WA), s 345(6). Criminal Code (NT), s 208. Burton v Parker [1998] TASSC 104, drawing on cases including Gouldham v Sharrett [1966] WAR 129 (FC); Spautz v Williams [1983] 2 NSWLR 506 at 537, 540; Shapowloff v Fitzgerald [1966] 2 NSWR 244 at 249. See also Byrnes v Barry [2003] ACTSC 54. Walsh v Jewell [1998] WASC 304. Waterhouse v Gilmore (1988) 12 NSWLR 270 at 288; see also Spautz v Williams [1983] 2 NSWLR 506 sub nom Williams v Spautz (1992) 174 CLR 509 (private prosecutions for criminal defamation brought by former lecturer against members of Council and staff of University of Newcastle as part of campaign to be reinstated). Cf Duffy v Baehnk (unreported, SA Supreme Court, Cox J, 4 March 1993) which involved proceedings commenced prior to the amendment to Criminal Law Consolidation Act 1935 (SA), s 257 requiring the consent of the Director of Public Prosecutions.

796 797

798 799

[3.1550] 153

Reporting Parliament and Elections

4

[4.10] INTRODUCTION ...................................................................................... 156 [4.20] REPORTING PARLIAMENT ....................................................................... 156 [4.20] Parliamentary privileges .......................................................................... 156 [4.30] The immunity of proceedings in parliament from impeachment or question ............................................................... 157 [4.40] [4.70] [4.80] [4.90] [4.100] [4.110] [4.140] [4.150] [4.170] [4.180]

Ambit of the immunity: immunity from civil and criminal action in respect of what is said in parliament ...... Ambit of the immunity: parliamentary papers ................... Ambit of the immunity: use of parliamentary records and documents in court proceedings ................................ Legislative intervention in the Commonwealth and the Northern Territory ................................................ Ambit of the immunity: actual repetition of statements made in parliament ......................................... Ambit of the immunity: effective repetition of statements made in parliament ......................................... Ambit of the immunity: actions brought by members ....... Proceedings in parliament ................................................. Is s 16(3) a valid law? ........................................................ Freedom of speech and constitutional guarantees of access to courts .............................................................

158 162 164 167 169 171 175 178 182 184

[4.190] Contempt of parliament ....................................................................... 184 [4.200] [4.210] [4.220] [4.230] [4.320] [4.500]

What is contempt of parliament? ...................................... Courts and contempt of parliament .................................. Contempt powers of the House of Commons .................... Contempt powers of the Commonwealth, State and Territory parliaments .......................................... Actions that can constitute contempt of parliament .......... Contempt and the implied freedom of political communication ....................................................

185 188 190 192 201 216

[4.510] Broadcasting parliamentary proceedings on radio, television and the internet ............................................................... 217 [4.510] [4.570]

Federal parliament ............................................................ 217 State and Territory parliaments .......................................... 220

[4.580] REPORTING ELECTIONS ........................................................................ 220 [4.590] Election broadcasts: reasonable opportunities for political parties .... 221 [4.600] Election broadcasts: advertising ban ................................................... 223 [4.610] Identification requirements .................................................................. 224 [4.620] Misleading and deceptive material ...................................................... 227 [4.630] Defaming a candidate ........................................................................... 230 [4.640] IDENTIFICATION AND RECORDS OF POLITICAL MATTER ................. 230 155

Australian Media Law

Introduction [4.10] The public depends on the media as its primary means of obtaining information about parliament and the political process. As a general rule, the media are free to report parliamentary proceedings, elections and other political material. However, this freedom is qualified in certain respects. The constraints come from quite different sources. The reporting of parliament is largely controlled by the parliaments themselves through the exercise of their contempt powers, which exist to enable them to protect the integrity of their processes. The media are also subject to a number of statutory obligations and prohibitions when reporting elections. These requirements are designed to achieve a variety of objectives, such as ensuring that political parties enjoy reasonable access to the electronic media during the lead up to an election, that the electorate is informed of the identity of those who authorise the publication of electoral matter, and that election candidates are not defamed. The reporting of parliament and elections is the subject of this chapter.

Reporting parliament Parliamentary privileges [4.20] Houses of Parliament as collective entities and members of parliament individually, though not in a personal capacity, enjoy certain rights, powers and immunities from the ordinary law which are not possessed by other bodies or individuals. 1 These rights, powers and immunities are collectively known as parliamentary privilege. 2 Parliamentary privilege is regarded as essential to enable the Houses of Parliament and their committees and members to effectively perform their functions and duties, which are to inquire, debate, legislate and hold the government to account. A key component of parliamentary privilege is the right of parliaments to regulate their own internal affairs without incursion by the courts, thereby securing a separation of power between the legislature and the judiciary. 3 This principle is known as “exclusive cognisance”. Parliamentary privilege is part of the common law and is recognised and protected by the courts. 4 Indeed, courts have jurisdiction to declare what are the powers, privileges and immunities of parliament. This was confirmed in R v Richards; Ex parte Fitzpatrick & Browne, where the High Court stated that “it is for the courts to judge of the existence in either House 1

M Jack (ed), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th ed, 2011), p 203.

2

It should be noted, however, that the term “privilege” is sometimes used to refer to parliament’s immunities in contradistinction to its powers. United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [17]. See Bradlaugh v Gosset (1884) 12 QBD 271; Pickin v British Railways Board [1974] AC 765; Office of Government Commerce v Information Commissioner [2010] QB 98 at [46]. Joint Committee on Parliamentary Privilege, United Kingdom Parliament, First Report HC 214 1998/9, Ch 1 [5]; Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), [1.8]. As discussed in [4.30], the right of free speech is also enshrined in legislation.

3

4

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of Parliament of a privilege”. 5 Although the existence and extent of a power or privilege is justiciable in the courts, “given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise”. 6 However, the demarcation between the existence and exercise of a power or a privilege is not entirely clear. Accordingly, there is scope for disagreement between courts and parliaments regarding the aspects of parliamentary privilege over which parliament enjoys exclusive jurisdiction. 7 Indeed, several recent developments indicate that the courts are incrementally contracting parliamentary privilege, particularly where it affects persons outside the house. 8 The privilege of most substance, and the only one of real relevance to the media, is the right of free speech in parliament. 9 The exact nature of the protection afforded by this privilege and its implications for the media is discussed at length in the following sections. Constitutional issues will also be briefly addressed.

The immunity of proceedings in parliament from impeachment or question [4.30] The right of free speech in parliament is enshrined in Art 9 of the Bill of Rights 1689 and forms part of the law of each Australian jurisdiction. 10 Article 9 states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. However, Art 9 did not create the right to freedom of speech; rather, it “encapsulated a pre-existing claim to exclusive cognisance over things said or done in parliament”. 11 It is a manifestation of the wider principle that the courts and parliament are both vigilant to recognise their respective constitutional roles and will not trespass into each other’s spheres. 12 5

6 7 8

9

10

11

R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. That the courts are the final arbiters of the scope of parliamentary privilege was established in 1839 in Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112. See also: Egan v Willis & Cahill (1996) 40 NSWLR 650 at 653, 675, 683; Egan v Willis (1998) 195 CLR 424 at 446, 460, 509; R v Chaytor [2011] 1 AC 684 at 697-698. Somewhat ironically, where a parliament considers that a court’s decision has unduly reduced the extent of its exclusive cognisance, it can enact legislation to reverse the court’s decision: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30, HC 100 (2013) at [32]-[40]. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. See also New Brunswick Broadcasting v Nova Scotia (1993) 1 SCR 319 at 350. G Griffith, Parliamentary Privilege: First Principles and Recent Applications, (Briefing Paper No 1/09, NSW Parliamentary Library Research Service 2009), pp 11-13. For examples of these developments see: P Joseph, “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly Review 568; G Griffith, Parliamentary Privilege: The Continuing Debate (Background Paper No 2/2014, New South Wales Parliamentary Research Service) at [2.1]-[2.4]. Other privileges include the qualified immunity of members of parliament from arrest in civil cases and the exemption of members of parliament from jury service and from attendance as witnesses in a court or tribunal while parliament is sitting. See BC Wright (ed), House of Representatives Practice (6th ed, 2012), pp 747-749; H Evans and R Laing (eds), Odgers’ Australian Senate Practice (13th ed, 2012), pp 72-73. Article 9 is incorporated into the law of the Australian jurisdictions in a variety of different ways, whether as received law, incorporation by legislation which adopts the privileges of the House of Commons as at a certain date or by re-enactment as local legislation: see [3.730]. United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL 30, HC 100 (2013) at [16]. In similar vein, G Griffith observed that “the privileges encapsulated in Article 9 pre-date its statutory expression

[4.30] 157

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Read literally, the reference to “any … place out of Parliament” would preclude all citizens, including the media, from criticising or questioning statements made by members of parliament in debates in parliament, 13 which would have “absurd consequences”. 14 In reality, the phrase is construed as referring primarily to courts and similar forums, such as royal commissions and tribunals. 15 The right of free speech in parliament is considered necessary to enable houses to carry out their functions without fear that their proceedings will be restricted or regulated by actions in the courts. 16 Article 9 cannot be waived by a member or a house (even by resolution); it can be waived, altered or added to only by legislation. 17 There are two broad issues regarding the scope of Art 9: what does it mean to “impeach or question” freedom of speech and debates or proceedings in parliament, and what are “proceedings in parliament”?

Ambit of the immunity: immunity from civil and criminal action in respect of what is said in parliament [4.40] The most certain and significant application of the immunity pertains to freedom of speech in debates in the house. Members of parliament cannot be sued for defamation or other civil cause of action, or be prosecuted for a criminal offence, such as contempt of court, 18 obscenity or hate speech, in relation to anything said in parliamentary debates. 19 This and can therefore be traced to an alternative source, namely, the inherent rights of Parliament associated with the ‘exclusive cognisance’ doctrine”: G Griffith, Parliamentary Privilege: The Continuing Debate (Background paper No 2/2014, New South Wales Parliamentary Research Service) at [4.2]. See also: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [40], where the right of free speech is described as an aspect of exclusive cognisance since its effect is to exclude any role for the courts in questioning proceedings in parliament. 12

13 14 15

16 17

18

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. For a brief history of Art 9 see: C Harders, “Parliamentary Privilege – Parliament Versus the Courts: Cross-examination of Committee Witnesses” (1993) 67 Australian Law Journal 109 at 112-116. For a discussion of the relationship between Art 9 and the doctrine of exclusive cognisance see: R v Chaytor [2011] 1 AC 684. Pepper v Hart [1993] AC 593 at 638; Mees v Roads Corporation (2003) 128 FCR 418 at [77]; Buchanan v Jennings [2005] 1 AC 115 at 123; Szuty v Smyth [2004] ACTSC 77 at [145]. Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825 at 2831. See also: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [80]. E Campbell, Parliamentary Privilege (2003), pp 19-21. See also Parliamentary Privileges Act 1987 (Cth), s 16 (references to “any court or tribunal”) and s 3 (definition of “tribunal”); Evans and Laing (eds), (13th ed, 2012), pp 64-65. The precise ambit of the phrase remains unclear. Would it include police questioning a member of parliament or investigations conducted by a corruption commission? See G Griffith, Parliamentary Privilege: First Principles and Recent Applications, (Briefing Paper No 1/09, NSW Parliamentary Library Research Service, 2009), p 4. Evans and Laing (eds), (13th ed, 2012), p 44. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335; R v Theophanous [2003] VSCA 78 at [63]. See also E Campbell (2003), Ch 8. The wider principle of exclusive cognisance can be waived or relinquished by parliament: R v Chaytor [2011] 1 AC 684 at 712; United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [27]. Although a member cannot be prosecuted for a statement that constitutes a sub judice contempt of court, in deference to the separate and independent role of the courts and in the interests of securing fair trials, most parliaments adhere to a convention that members will refrain from making statements about matters that are before the courts, although there are circumstances in which the convention will not be observed. See, for

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protection is absolute, meaning that members are immune from legal actions irrespective of their intentions and motives in making the utterances and even if what they say is known to be untrue. The same immunity from suit applies to other participants in proceedings in parliament, such as witnesses who give evidence before parliamentary committees. 20 Immunity from civil and criminal action is regarded as essential if the Houses are to be able “to debate and to inquire utterly fearlessly for the public good”. 21 Since statements made by members under the protection of the immunity are capable of damaging the reputation and welfare of others, members are expected to use their freedom of speech judiciously. 22 Any abuse of the freedom can be dealt with by the House, 23 and is certainly likely to arouse the ire of the media. 24 Most Australian legislatures have made provision for citizens who are subjected to criticism and attack by members under the cover of parliamentary privilege to apply to the

example, Australian Capital Territory, Legislative Assembly, Continuing Resolution 10, Sub Judice; New South Wales, Legislative Assembly, Fact Sheet 22, Sub Judice Convention; Queensland Parliament, Members’ Ethics and Parliamentary Privileges Committee, Issues Paper No 2, 1997, The Sub Judice Convention; Queensland Legislative Assembly Standing Order 233 Sub Judice Rule; Western Australia, Legislative Assembly Standing Order 91. See also: V Mullen, “The Parliamentary Sub Judice Convention and the Media” (1996) 19 University of New South Wales Law Journal 303; McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 at [9]-[10]. Some of the difficulties experienced by a parliament in complying with the sub judice convention are described in United Kingdom, Report of the Committee on Super-injunctions, Superinjunctions, Anonymised Injunctions and Open Justice (2011), Ch 5. 19

20

21

22 23

24

Ex parte Wason (1869) LR 4 QB 573; Dillon v Balfour (1887) 20 Ir LR 600. A defence of absolute privilege under the uniform defamation legislation is separately accorded: Civil Law (Wrongs) Act 2002 (ACT), s 137; Defamation Act 2005 (NSW), s 27; Defamation Act (NT), s 24; Defamation Act 2005 (Qld), s 27; Defamation Act 2005 (SA), s 25; Defamation Act 2005 (Tas), s 27; Defamation Act 2005 (Vic), s 27; Defamation Act 2005 (WA), s 27. However, the absolute privilege afforded under defamation law should not be conflated with Art 9. The scope of absolute privilege is “strictly defined by reference to the setting in which the words complained of were uttered: Parliament; the Queen’s courts. Once publication in the prescribed setting is established, the privilege attaches”: Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [19]. By contrast, the reach of Art 9 is “not as clear cut”, since it is not as dependent on the setting in which a statement is made. See [4.100]. Goffin v Donnelly (1881) 6 QBD 307. In some jurisdictions, witnesses before a parliamentary committee enjoy a statutory immunity from defamation suits, for example: Parliamentary Evidence Act 1901 (NSW), s 12 (this provision applies in addition to any defence available under the Defamation Act 2005 (NSW)); Constitution Act 1975 (Vic), s 19A(7). It is open to parliament to legislate to provide exceptions to this immunity from suit. For example, in some jurisdictions witnesses before parliamentary committees can be prosecuted for giving false evidence. See, eg, Criminal Code (WA), s 57. Evans and Laing (eds), (13th ed, 2012), p 44. See Sankey v Whitlam (1978) 142 CLR 1 at 35; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 334. See also I Macphail, “Is Parliamentary Privilege Incompatible With a Modern View of the Public Interest?” (2010) 25(2) Australasian Parliamentary Review 162. Some parliaments have made express resolutions to this effect. See, eg, Australian Capital Territory, Legislative Assembly, Continuing Resolution 7 Freedom of Speech. The conduct of members in parliament is regulated by the internal rules of debate that apply to that particular House – see Wright (ed), (6th ed, 2012), pp 735-736, 776-777 – and by parliament’s disciplinary powers. For example, if a member makes a deliberately untrue statement, this can be dealt with as a contempt of parliament. For a discussion of what can and should be done by a House where a member has misused or abused his or her freedom of speech see: E Campbell and M Groves, “Attacks on Judges Under Parliamentary Privilege: A Sorry Australian Episode” [2002] Public Law 626; Campbell (2003), Ch 5. C Forell, “Abuse of Privilege: A Perspective from the Press Gallery” (2002) 17(2) Australasian Parliamentary Review 247.

[4.40] 159

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House to have a response recorded in the parliamentary record. 25 Moreover, a citizen who is attacked in parliament can claim qualified privilege if he or she defames the member in reply, as can a media organisation that publishes the reply. 26 Although parliaments and their members enjoy complete immunity from suit in respect of statements made in the course of parliamentary proceedings, absolute privilege is generally not conferred on media organisations which republish those statements. However, the media possess a qualified immunity from defamation actions in respect of the publication of fair and accurate reports of what is said in parliament and in parliamentary committees. The fact that the immunity is qualified, not absolute, means that it is conditional and will be lost if the report is not fair and accurate or is published with malice or bad faith, or for an improper purpose. 27 The existence and ambit of qualified privilege is not a “diluted extension of the absolute parliamentary immunity”. 28 Qualified privilege is the creature of the law of defamation and its only connection with parliamentary privilege is that it applies to reports of parliamentary proceedings. 29 It is accorded both at common law, 30 and under the uniform defamation legislation. 31 Qualified privilege rests on the principle that the public interest in receiving reports of parliamentary proceedings outweighs any injury to reputation that results from the publication. 32 It seems that the media are protected by qualified privilege even if the parliamentary proceeding which formed the subject of the media report was not conducted in accordance with the rules of the House. 33 The media may also be able to claim the extended qualified privilege that is accorded to political and governmental communication. 34 In some cases, the qualified immunity from defamation actions enjoyed by the media has been elevated by legislation to an absolute immunity. For example, in the Commonwealth and 25

This right of reply procedure is described in: Wright (ed), (6th ed, 2012), pp 774-776; Evans and Laing (eds), (13th ed, 2012), pp 95-96; Campbell (2003), Ch 5; Senate Committee of Privileges, Parliament of Australia, Parliamentary Privilege: Precedents, Procedures and Practice in the Australian Senate 1966-2005, 125th report (2005), Ch 3. See also: A Jones, “Should Australian Parliaments Retain the Citizens’ Right of Reply Procedure? Is the Most Prevalent Model the Best One?’” http://www.anzacatt.org.au/parliament/general/ Anzacatt/Anzacatt.nsf/All/CC8B1D426A74BF71CA257B020077E4F1/$file/Alice%20Jones%20Citizens’%20 Right%20of%20Reply.pdf.

26

Adam v Ward [1917] AC 309; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Penton v Calwell (1945) 70 CLR 219. See [3.880]. The more difficult question is whether the citizen can rely on what was said in parliament to help establish his or her defence. This is discussed below.

27

For a discussion of what is fair and accurate see [3.830].

28 29

Evans and Laing (eds), (13th ed, 2012), p 72. Evans and Laing (eds), (13th ed, 2012), p 72.

30 31

Wason v Walter (1868) LR 4 QB 73. See [3.810] Civil Law (Wrongs) Act 2002 (ACT), s 139; Defamation Act 2005 (NSW), s 29; Defamation Act (NT) s 26; Defamation Act 2005 (Qld), s 29; Defamation Act 2005 (SA) s 27; Defamation Act 2005 (Tas), s 29; Defamation Act 2005 (Vic), s 29; Defamation Act 2005 (WA), s 29. See [3.820]-[3.850].

32 33

Wason v Walter (1868) LR 4 QB 73 at 88. Thus journalists who reported in fair and accurate terms comments made by Senator Heffernan about Justice Kirby in 2002 were protected by qualified privilege even though the Senator’s comments were contrary to a Senate standing order which expressly forbade personal attacks on judges: see discussion in Australian Press Council, Annual Report 26, 30 June 2002, pp 29-30. See [3.970]-[3.1010].

34

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Northern Territory, legislation confers an absolute privilege against defamation actions on the publication of a fair and accurate report of proceedings at a meeting of a House or committee. 35 Absolute immunity is frequently conferred on authorised broadcasts and re-broadcasts of proceedings of parliaments. 36 It is more difficult to determine the limits of the media’s protection where a court has issued a suppression order and the veil of secrecy surrounding the order is broken by a member of parliament under the cover of privilege. Can the media lawfully report the member’s comments or would this amount to a breach of the order and therefore a contempt of court? This question arose in the United Kingdom in the Trafigura case but was not resolved. Example

The Trafigura case [4.50] The Trafigura case Trafigura, an oil-trading company, obtained an injunction against the Guardian newspaper which prevented the newspaper from publishing information derived from a legally privileged and confidential draft report (“the Minton report”) regarding the dumping of toxic waste by Trafigura in the Ivory Coast. The injunction was a super injunction, meaning that the Guardian was unable to report that it had been granted and by whom it was obtained. 37 Subsequently, a British MP tabled a question in the House of Commons concerning the impact of the injunction on press freedom, thereby breaking the veil of secrecy regarding the injunction, the Minton report and Trafigura’s alleged dumping of toxic waste. 38 The Guardian wished to report the member’s question and the subsequent parliamentary debate that would ensue when it was answered in the House. Initially, Trafigura’s lawyers objected, maintaining that this would amount to a breach of the injunction and a contempt of court. 39 The Guardian thereupon published a statement that it was unable to report a parliamentary question. However, both parties ultimately agreed to the variation of the injunction to allow the parliamentary question to be reported. 40 Thus the question of whether an order restraining the reporting of parliamentary proceedings could ever be lawful (and thus whether the Guardian had freedom to publish) was never considered by a court. This is

35 36 37

38

39 40

Parliamentary Privileges Act 1987 (Cth), s 10; Legislative Assembly (Powers and Privileges) Act (NT), s 13. To attract the immunity the publisher must not have adopted the substance of the defamatory material. For example: Parliamentary Proceedings Broadcasting Act 1946 (Cth), s 15; Legislative Assembly (Powers and Privileges) Act (NT), s 23(2); Constitution Act 1975 (Vic), s 74AA. The initial injunction is referred to in the Report of the Committee on Super-Injunctions as having been reported as RJW & SJW v The Guardian Newspaper & Person or Persons Unknown (Claim No HQ09): Super-Injunctions, Anonymised Injunctions and Open Justice (i). There is no doubt that, as a result of Art 9, the member could not be prosecuted for breaching the injunction even though his revelations violated the sub judice convention that is observed in the House of Commons, as a court has no power to prohibit or control what can be debated in parliament. It was never clear whether the terms of the court order extended this far. RJW and SJW v Guardian News and Media Ltd Claim No HQ09X04132, at http://www.judiciary.gov.uk/ Resources/JCO/Documents/Judgments/rjw-guardian-order-13102009.pdf

[4.50] 161

Australian Media Law The Trafigura case cont. not the only occasion on which information subject to anonymised injunctions has been revealed in the UK parliament. 41

[4.60] A subsequent report of the United Kingdom Committee on Super-injunctions regarded it as an open question: whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. 42 What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right. 43

A report by a Joint Committee on Privacy and Injunctions stated that while there is common law protection for the media in defamation proceedings, “there is no authority as to whether there is common law protection against proceedings for contempt of court in respect of a fair and accurate report of parliamentary proceedings”. 44 It has been suggested that even where the terms of a court order are wide enough to have the effect of preventing media reporting of proceedings in parliament, courts should not interpret the order as extending that far. 45 In any event, in Australia, the implied freedom of political communication might prevent the court order from operating in this manner. 46

Ambit of the immunity: parliamentary papers [4.70] Entities that print and publish parliamentary papers by, or under the authority of, a house of parliament cannot claim the protection of Art 9 in respect of papers that are made available to the public. 47 However, immunity from civil and criminal actions is extended by legislation in the United Kingdom and in most Australian jurisdictions to entities that publish documents by order of, or under the authority of, a house, 48 the reason being that 41

See: United Kingdom Parliament, Joint Committee on Privacy and Injunctions, First Report HL Paper 273/HC 1443 (March 2012) at [211].

42

This is a reference to the Parliamentary Papers Act 1840 (UK) which is described in [4.70]. Section 3 provides that any “extracts or abstracts” of official reports of Parliament and “authenticated copies” thereof will be protected from legal liability but only if the extract or abstract was published “bona fide and without malice”. United Kingdom, Report of the Committee on Super-injunctions, Super-injunctions, Anonymised Injunctions and Open Justice (2011), at [6.33]. United Kingdom Parliament, Joint Committee on Privacy and Injunctions, First Report HL Paper 273/HC 1443 (March 2012) at [239].

43 44 45 46 47

48

G Carney, “Another Judicial Skirmish with Parliamentary Privilege: Trafigura’s Super Injunction Against the Guardian Newspaper” (2010) 21 Public Law Review 5 at 8-9. Carney (2010) 21 Public Law Review 5 at 8. Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 (parliamentary privilege held to only protect papers printed by order of a House for the use of its own members). This case is discussed in E Campbell and M Groves, “Parliamentary Papers and Their Protection” (2004) 9 Media and Arts Law Review 113 at 115. Parliamentary Papers Act 1840 (UK) (enacted in response to the decision in Stockdale v Hansard); Parliamentary Papers Act 1908 (Cth), s 4; Parliamentary Privileges Act 1987 (Cth), s 16 (for a discussion of the relationship between these two Acts and of the Commonwealth Parliament’s power to enact such

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parliamentary freedom of speech “would be of little value if what is said in parliament … could not be freely communicated outside parliament”. 49 In addition, the uniform defamation legislation extends absolute privilege to matter published in the course of the proceedings of a parliament, house or committee. 50 The protection includes (but is not limited to) the publication of a document by order or authority of the parliamentary body and the publication of the debates and proceedings of the body by order or authority of the body or any law. The range of parliamentary papers that are capable of attracting the protection of these provisions has greatly increased, leading some to suggest that the absolute protection granted by legislation should be conferred more sparingly. 51 In many jurisdictions, persons who publish copies, abstracts and extracts of parliamentary papers are protected from liability by legislation, although the nature and extent of that protection varies and may be qualified. 52 Moreover, the uniform defamation legislation confers a defence on persons, including the media, who publish defamatory matter that is contained in a public document, a fair copy of a public document, or a fair summary or extract from a public document. 53 A “public document” includes any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law. However, the defence is defeated where the plaintiff can prove that the defamatory matter was not published honestly for the information of the public or for the advancement of education. Although media organisations

49 50

51

52

53

legislation see: Campbell and Groves (2004) 9 Media and Arts Law Review 113 at 115-117); Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW), ss 6, 7; Legislative Assembly (Powers and Privileges) Act (NT), ss 6(2), 11; Parliament of Queensland Act 2001 (Qld), s 56; Constitution Act 1975 (Vic), s 73; Parliamentary Papers Act 1891 (WA), s 1 (civil proceedings only). The ambit of these provisions varies greatly and it is necessary to examine each one to ascertain the types of parliamentary papers covered by the immunity, the entities upon whom protection is conferred and the precise scope of the immunity from legal liability. Most of the aforementioned Acts contain provisions which empower parliament to order the publication of papers, and may deem certain types of documents to have been published by, or under the authority of, a House. In many jurisdictions, provision is made for legal proceedings that are commenced in relation to such publications to be immediately and permanently stayed upon presentation of a certificate by the presiding officer of a House to the effect that the document was published by order or under the authority of the House. United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HL Paper 43/HC 214 1998/9, at [341]. Civil Law (Wrongs) Act 2002 (ACT), s 137(2)(a); Defamation Act 2005 (NSW), s 27(2)(a); Defamation Act (NT), s 24(2)(a); Defamation Act 2005 (Qld), s 27(2)(a); Defamation Act 2005 (SA), s 25(2)(a); Defamation Act 2005 (Tas), s 27(2)(a); Defamation Act 2005 (Vic), s 27(2)(a); Defamation Act 2005 (WA), s 27(2)(a). Campbell and Groves (2004) 9 Media and Arts Law Review 113 at 117, 122-123; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HL Paper 43/HC 214 1998/9, at [348]-[354]; N Lake, “Parliamentary Papers and Parliamentary Privilege: A Case for Continued Vigilance” (2007) 22(2) Australasian Parliamentary Review 107. See, for example, Constitution Act 1975 (Vic), ss 74(1) (absolute protection from civil and criminal liability for publication of complete copies of parliamentary papers), 74(3) (abstracts of parliamentary papers protected from civil and criminal liability if published bona fide and without malice); Parliament of Queensland Act 2001 (Qld), s 54 (no civil or criminal liability for publication of fair report of a tabled document); Parliamentary Papers Act 1891 (WA), ss 2 (absolute protection from civil liability for copies of parliamentary papers), 3 (extracts and abstracts of parliamentary papers protected from civil liability if published bona fide and without malice). Civil Law (Wrongs) Act 2002 (ACT), s 138; Defamation Act 2005 (NSW), s 28; Defamation Act (NT), s 25; Defamation Act 2005 (Qld), s 28; Defamation Act 2005 (SA), s 26; Defamation Act 2005 (Tas), s 28; Defamation Act 2005 (Vic), s 28; Defamation Act 2005 (WA), s 28. See [3.790]. Protection for fair reports also exists at common law (Wason v Walter (1868) LR 4 QB 73) and under the uniform defamation legislation.

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frequently garner information from parliamentary documents, they are unlikely to publish large, verbatim abstracts or extracts of them. Accordingly, the protection afforded by these statutes is unlikely to be of great practical assistance to the media. 54

Ambit of the immunity: use of parliamentary records and documents in court proceedings [4.80] The fact that Art 9 of the Bill of Rights 1689 prohibits debates and proceedings in parliament from being “impeached or questioned” in any court also means that there are restrictions on the evidentiary use that can be made of parliamentary records and documents 55 in judicial proceedings. 56 The nature and extent of the restrictions depends on the true ambit of the Article and the meaning attributed to the phrase “impeached or questioned”. The weight of authority favours the view that Art 9 does not prohibit parliamentary debates and documents from being used in judicial proceedings for certain limited purposes. 57 The first is to prove a non-contentious fact, such as that a member of parliament was present in the House on a particular day and voted, or that certain statements were made, certain subjects debated, certain decisions announced or certain documents tabled in a House, or that a statute has been passed. 58 Secondly, in light of the fact that courts are directed to take a purposive approach to the construction of legislation, courts are permitted to examine what was said in parliament to assist in the interpretation of statutes. 59 The most enlightening comments in this respect are likely to be those contained in the Minister’s Second Reading Speech. Thirdly, in proceedings 54

United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL paper 30/HC 100 (2013) at [191].

55

Documents that may be involved include the Votes and Proceedings, Hansard, documents tabled in the House, committee reports, transcripts of committee evidence and documents submitted to committees: Wright (ed), (6th ed, 2012), pp 739-740. This restriction on the use of parliamentary records was once complemented by a practice in some Houses of Parliament of requiring leave of the House to be granted before its records could be produced in court. However, most Houses have dispensed with this requirement in faith that the courts will ensure that any parliamentary records that are produced will not be used in a manner that violates Art 9. It should also be noted that it is not an infringement of parliamentary privilege for a court to receive particular material into evidence on a provisional basis in order to ascertain whether it falls within the scope of parliamentary privilege: Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Slipper v Magistrates Court of the ACT [2014] ACTSC 85. See Sankey v Whitlam (1978) 142 CLR 1 at 35-37; Uren v John Fairfax & Sons Ltd [1979] 2 NSWLR 287 at 289; Mundey v Askin [1982] 2 NSWLR 369 at 373; Henning v Australian Consolidated Press Ltd [1982] 2 NSWLR 374 at 375; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 182; Mees v Roads Corporation (2003) 128 FCR 418 at 443; Erglis v Buckley [2004] 2 Qd R 599 at 612; Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) at [49]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd (2009) 74 NSWLR 612 at 615; Philip Morris Ltd and British American Tobacco Australia Ltd and Department of Health and Aging [2011] AATA 215 at [167]. It has been suggested that the distinction between mere proof and “impeaching or questioning” does not withstand scrutiny: P Joseph, “Parliament’s Attenuated Privilege of Freedom of Speech” (2010) 126 Law Quarterly Review 568. Pepper v Hart [1993] AC 593 (the House of Lords did, however, impose limits on the circumstances in which reference can be made to statements made in parliament during the passage of a bill). Wilson v First County Trust (No 2) (2004) 1 AC 816 at 839-844, 855-857, 864-867 considers the extent to which it is permissible for UK courts to refer to the parliamentary record in deciding whether legislation is compatible with the European

56

57

58

59

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for judicial review it seems that a plaintiff can rely on evidence of what was said by a Minister in Parliament to shed light on the motivation of the government’s action outside Parliament, provided the accuracy of the statements is not being challenged. 60 Fourthly, where it is a constitutional requirement that certain parliamentary procedures be followed in order for legislation to be valid, the immunity conferred by Art 9 does not prevent the courts from ascertaining whether those procedures were followed. 61 Fifthly, as explained in [4.20], courts can rule on whether conduct is capable in law of amounting to a breach of privilege, although parliament is the sole judge of whether a violation of a privilege has actually occurred. 62 Sixthly, courts can examine reports of parliamentary proceedings to establish whether a media report of the proceeding is fair and accurate for the purposes of attracting qualified privilege. 63 Finally, where certain activities in relation to parliamentary proceedings constitute criminal offences which may be prosecuted in the courts, proceedings in parliament can be examined in any judicial proceedings relating to those offences. 64 Indeed, the successful prosecution of such offences may require that this be so. 65 It has been noted that in creating such offences, parliaments have made inroads into their own immunity. 66 Although it is generally agreed that the substance of what is said or done in parliament can be used in judicial proceedings to prove non-contentious facts, there has been significant disagreement as to whether what is said or tabled in parliament can be the subject of any submission or inference. Until the controversial decision of Hunt J in R v Murphy, 67 it was generally accepted that it could not. 68 Accordingly, Art 9 could be invoked to prevent the

60

61

62 63 64 65 66 67 68

Convention on Human Rights. At Commonwealth level, s 16(5) of the Parliamentary Privileges Act 1987 (Cth) expressly preserves the right of courts to admit and examine official parliamentary debates for the purpose of interpreting an Act. In some jurisdictions general statutory provisions permit the use of such extrinsic material as an aid to interpretation eg: Acts Interpretation Act 1901 (Cth), s 15AB. Toussaint v Attorney-General of St Vincent and the Grenadines [2007] 1 WLR 2825. But see United Kingdom Parliament, Joint Committee on Parliamentary Privilege (2013) at [122]-[125] regarding cases that involve judicial review of executive action. See also: M Hutton, Parliamentary Privilege: Recent Developments from the House of Commons http://www.anzacatt.org.au/parliament/general/Anzacatt/Anzacatt.nsf/0/ 2EB263CCD9021F59CA25755A007383B0/$file/Mark%20Hutton%20UK.doc. Victoria v Commonwealth (1975) 134 CLR 81; Evans and Laing (eds), (13th ed, 2012), p 44. At Commonwealth level, s 16(5) of the Parliamentary Privileges Act 1987 (Cth) expressly preserves the right of courts to admit and examine official parliamentary debates in relation to a question arising under the deadlock provisions in s 57 of the Commonwealth Constitution. Constitutional requirements aside, it is not open to the courts to investigate whether a bill was validly enacted: Hoani Te Tukino v Aotea District Maori Land Board [1941] AC 308 at 322; British Railways Board v Pickin [1974] AC 765. The court can, of course, rule on the validity of an Act as it has emerged from the legislative process: Clayton v Heffron (1960) 105 CLR 214 at 234-235. Victoria Legislative Assembly Speaker v Glass (1871) LR 3, PC App 560; R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157; Halden v Marks (1996) 17 WAR 447. Laurance v Katter (1996) 141 ALR 447 at 480-481; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 183. This is expressly provided for in Parliamentary Privileges Act 1987 (Cth), s 16(6). Evans and Laing (eds), (13th ed, 2012), pp 53, 79. Evans and Laing (eds), (13th ed, 2012), p 53. R v Murphy (1986) 5 NSWLR 18. Note that Art 9 does not prevent a House from conducting its own inquiry to determine whether statements made by a member under the protection of parliamentary privilege are true. This task may also be committed to an independent executive body such as a commission of inquiry, provided that legislation has been enacted

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content of parliamentary debates and documents from being criticised or called into question, to prevent any inquiry into the motives and intentions of members of parliament in relation to anything said or done in parliament, and to prevent parliamentary proceedings from being used to support a cause of action arising from something that occurred outside those proceedings. 69 This orthodox view of Art 9 was rejected in R v Murphy. 70 That case concerned the use which could be made in criminal proceedings of evidence given before a Senate committee. The principal prosecution witnesses in the two trials concerning Justice Lionel Murphy had given evidence and tendered written statements before Senate Select Committees which had conducted inquiries to determine whether the judge should be removed from office by parliamentary address. In advance of the second trial, counsel instructed by the President of the Senate submitted that it is a breach of Art 9 for a person who has given evidence or made statements to a parliamentary committee to be cross-examined on that evidence in curial proceedings, irrespective of whether that person is a witness or a defendant in those proceedings. 71 Hunt J rejected counsel’s submission. He held that not only can evidence as to what a witness said before a parliamentary committee be admitted for the purpose of establishing a non-contentious material fact, such as that a person gave evidence before a committee at a particular time, 72 parliamentary records can be used to prove that certain statements were made by a witness before a committee, even where the purpose is to invite the court to disbelieve the witness’s evidence given in the court proceedings by reason of the inconsistency between the witness’s previous statement and his or her later evidence in court. 73 According to Hunt J, the protection conferred by Art 9 is confined to precluding parliamentary proceedings from being the foundation of an action. That is, it only prevents direct legal consequences from being visited upon members of parliament and committee witnesses etc for things said or done in proceedings in parliament. 74 Article 9 does not prevent what is said or done in proceedings in parliament from being used to support an action which arises out of something said or done outside parliament, either by providing

69

70 71

to remove the constraints imposed by Art 9: E Campbell, “Investigating the Truth of Statements Made in Parliament. The Australian Experience” [1998] Public Law 125; G Griffith, “The Powers and Privileges of the New South Wales Legislative Council: Arena v Nader” (1998) 9 Public Law Review 227. See, for example: Dingle v Associated Newspapers Ltd [1960] 2 QB 405 (validity of a report of a select committee of the House of Commons could not be impugned); Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 (report of Hansard could not be used to support a cause of action against a member even though the cause of action arose out of something done by the member outside the house); R v Secretary of State for Trade; Ex parte Anderson Strathclyde plc [1983] 2 All ER 233 (report of Hansard could not be used against the Secretary of State to support a ground for relief in proceedings for judicial review of an administrative decision made outside of Parliament). See also: Comalco Ltd v Australian Broadcasting Corporation (1983) 50 ACTR 1; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18 (per Zelling ACJ). R v Murphy (1986) 5 NSWLR 18. It was assumed that evidence given by a witness before a parliamentary committee should receive the same protection as statements made by members of parliament in debate, since the proceedings of a committee are “proceedings in parliament” for the purposes of Art 9: see [4.150].

72

R v Murphy (1986) 5 NSWLR 18 at 26.

73 74

R v Murphy (1986) 5 NSWLR 18 at 26-27. R v Murphy (1986) 5 NSWLR 18 at 30.

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primary evidence of an offence or a civil wrong, or by providing a basis for attacking the evidence of a witness or defendant in court proceedings, or by providing evidence of a state of mind on the part of a member or committee witness as at some other time or place. 75 Accordingly, it is legitimate for statements made in a House or before a committee to be the subject of comments, to be used to draw inferences or conclusions, to be made the basis of cross-examination or submission, and to be the subject of comparisons with statements made by the same person outside parliament. 76 The decision and reasoning of Hunt J has not been followed in subsequent cases and is regarded by courts as incorrect. 77 The weight of authority overwhelmingly favours the conventional interpretation of Art 9, namely, that it precludes a party to legal proceedings from calling into question words spoken or actions done in parliament – for example, by suggesting that they are untrue or misleading – and prohibits the cross-examination of witnesses in a court of law regarding what they said in evidence before a parliamentary committee. Although well entrenched, the distinction between using parliamentary records to prove non-contentious facts – a permissible usage – and using them to draw inferences and question motives – an impermissible usage – is not always self-evident. 78

Legislative intervention in the Commonwealth and the Northern Territory [4.90] The Commonwealth Parliament regarded the decision in R v Murphy as a serious threat to the freedom of speech of members of parliament and witnesses before parliamentary committees. In response to the decision it enacted the Parliamentary Privileges Act 1987. The right of free speech at Commonwealth level is now largely governed by that Act. Section 16 states that the Commonwealth Houses of Parliament possess the privilege of freedom of speech as enshrined in Art 9, and proceeds to declare what is the effect of Art 9 in its application to the Commonwealth Parliament. 79 Unlike Art 9, s 16(3) defines what is meant by “impeached or questioned”. It does not explicitly declare that members or witnesses may not be prosecuted or sued for their participation in parliamentary proceedings, as that proposition is regarded as beyond doubt and clearly encompassed by Art 9. 80 Rather, the provision attempts to delineate the wider operation of the Article and restores the orthodox interpretation

75

R v Murphy (1986) 5 NSWLR 18 at 34.

76 77

R v Murphy (1986) 5 NSWLR 18 at 27, 39. See, for example: R v Jackson (1987) 8 NSWLR 116 at 121; Pepper v Hart [1993] AC 593; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333; Rann v Olsen (2000) 76 SASR 450 at 491, 494-495; Szuty v Smyth [2004] ACTSC 77; Commonwealth v Vance (2006) 158 ACTR 47. The imprecision is evident in Erglis v Buckley [2003] QSC 440 (Philippides J); Erglis v Buckley [2004] 2 Qd R 599 (Court of Appeal).

78 79 80

The effect given to the Article by s 16 is expressed to be in addition to any other operation it may have: s 16(1). Evans and Laing (eds), (13th ed, 2012), p 50.

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of the immunity. It states that in proceedings in any court or tribunal, 81 it is not lawful for evidence to be tendered or received, or for questions to be asked, or statements, submissions or comments made, concerning proceedings in the Commonwealth Parliament for any of the following purposes: • questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in parliament; 82 • otherwise questioning or establishing the credibility, motive, intention or good faith of any person (this paragraph applies even where this does not directly call into question those proceedings of parliament); 83 or • drawing or inviting the drawing of inferences or conclusions from anything forming part of those proceedings in parliament. 84 An identical provision appears in Northern Territory legislation. 85 New Zealand has recently introduced an even more expansive provision. 86 By contrast, the United Kingdom government has decided that a case has not been made for a comprehensive codification of privilege in a Parliamentary Privilege Act. 87

81

A court means a federal court or a court of a State or Territory. “Tribunal” is defined in s 3. It has been suggested in O’Chee v Rowley (1997) 150 ALR 199 at 201 and in Rann v Olsen (2000) 76 SASR 450 at 492-493 that the phrase “court or tribunal” used in s 16 may be more restrictive than the phrase “in any court or place out of parliament” used in Art 9, but that s 16(1) would seem to preserve any wider meaning in the Article.

82

Section 16(3)(a). This prohibition is intended to prevent a statement made by a member or evidence given by a parliamentary witness from being directly attacked for the purpose of court proceedings, or the motives of the member or witness in speaking or giving evidence from being attacked: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. Section 16(3)(b). This prohibition is intended to prevent a member’s speech or a witness’s evidence from being used to establish their motives or intention for the purpose of supporting an action against them or against another person. For example, a member’s statements outside parliament cannot be shown to be actuated by malice by reference to alleged malice in statements made in parliament: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. See Hamsher v Swift (1992) 33 FCR 545 at 564. Section 16(3)(c). This prohibition aims to prevent a jury from being invited to infer matters from speeches of members or evidence of parliamentary witnesses in the course of a civil or criminal action against them or another person. For example, a member’s speech in parliament cannot be used to support an inference that the member’s conduct outside parliament was part of an illegal activity: Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth), cl 16. See Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; Hamsher v Swift (1992) 33 FCR 545; Laurance v Katter (1996) 141 ALR 447 at 481, 483; Habib v Commonwealth [2008] FCA 1494. Legislative Assembly (Powers and Privileges) Act (NT), s 6. Section 16 also applies to the Australian Capital Territory by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth). See also Parliamentary Privileges Bill 2010 (NSW), Exposure Draft, cl 7. The Parliamentary Privilege Act 2014 (NZ), s 11 provides that in proceedings in a court or tribunal, “evidence must not be offered or received, and questions must not be asked or statements, submissions, or comments made, concerning proceedings in Parliament” for the purpose of, inter alia, “proving or disproving … any fact necessary for, or incidental to, establishing any liability” or “resolving any matter, or supporting or resisting any judgment, order, remedy, or relief, arising or sought in the court or tribunal proceedings”. United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [37].

83

84

85

86

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The introduction of evidence of statements made in parliament in breach of s 16(3) does not necessarily compromise the case. A trial will miscarry only if the introduction of such evidence constitutes a substantial miscarriage of justice. 88 It has been noted that s 16(3) subordinates the interests of the administration of justice in the courts to those of the parliamentary committee system by denying accused persons their normal right to cross-examine witnesses against them in court proceedings. 89 This may be a breach of Australia’s obligations under Art 14.3(e) of the International Covenant on Civil and Political Rights, which states that in the determination of a criminal charge, every person is entitled to the right to examine or have examined the opposing witnesses. In line with the orthodox interpretation of Art 9, the Explanatory Memorandum to the Parliamentary Privileges Bill 1987 (Cth) confirms that s 16(3)(c) is not intended to prevent material and non-contentious facts from being proved by reference to a record of proceedings in parliament, such as that a member was in parliament on a certain day. 90 Section 16(4) imposes an absolute prohibition on the production or admission into evidence in court proceedings of any evidence (oral or documentary) taken in camera, unless a House or committee has published or authorised the publication of that evidence. The precise relationship between s 16(3) and Art 9 is uncertain. Whilst some judges consider that s 16(3) is merely declaratory of Art 9, 91 other judges are inclined to the view that the section extends the operation of Art 9. 92 The relationship between the two provisions is important in determining whether judicial interpretations of Art 9 govern the interpretation of s 16, and in ascertaining whether s 16 infringes the implied freedom of political communication.

Ambit of the immunity: actual repetition of statements made in parliament [4.100] A member of parliament may make defamatory statements in parliament, then give a media interview or a press conference in which the member repeats those comments for his or her own purposes. In this case, the person in respect of whom the comments were made can sue the member in defamation provided the cause of action is founded on what was said in the interview and not on what was said in parliament. 93 The extra parliamentary comment 88 89 90 91 92

93

R v Theophanous [2003] VSCA 78 at [71]-[72]. Of course the parliament could treat the introduction of the evidence as a contempt. Harders (1993) 67 Australian Law Journal 109 at 112. This was confirmed in Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 230. Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223 at 231; Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 333; Rann v Olsen (2000) 76 SASR 450 at 490-491 per Prior J. Rann v Olsen (2000) 76 SASR 450 at 461-462, 468-469, 476 (per Doyle CJ with whom Mullighan J agreed), 492 (per Perry J), 513 (per Lander J, who did not find it necessary to decide the question but conceded that there were cogent arguments that it did). See also the tentative view expressed in Mees v Roads Corporation (2003) 128 FCR 418 at 445. R v Lord Abingdon (1795) 1 Esp 226; 170 ER 337; R v Creevey (1813) 1 M&S 273; 105 ER 102; Dillon v Balfour (1887) 20 Ir LR 600; Stopforth v Goyer (1978) 87 DLR (3d) 373; Australian Broadcasting Corporation

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is not protected by Art 9 as the member “does not deserve it for himself, and the integrity of Parliament’s process does not require it”. 94 The basis for the member’s liability is that every republication of a libel is a new libel. Thus it is irrelevant that the original publication was protected by Art 9 or absolute privilege. To successfully resist the claim, the member would need to rely on some other defence, such as truth, honest opinion or qualified privilege. Reliance on other defences will inevitably involve the court in making findings about truth and motives. Any findings made in respect of the extra parliamentary statement will ordinarily apply with equal force to the parliamentary statement. However, such an inquiry is not precluded by Art 9 because the plaintiff’s claim is founded on what was said outside the House; 95 the fact that the findings impinge on the words spoken in the House is incidental. 96 The fact that a member is liable for actual repetitions has implications for the liability of media organisations that publish the member’s comments. The same position applies in respect of defamatory statements made prior to parliamentary debates which are then repeated in parliament, such as a press release which is later repeated in the House. 97 However, the position is otherwise where a member makes defamatory comments outside parliament without naming the person, then subsequently names the person in parliament. In this case, the member cannot be successfully sued because the person has to rely on the fact that he or she was named inside parliament in order to complete the cause of action. In Peters v Cushing this was held to be impermissible. 98 The member must be free to name the plaintiff in parliament if he or she judges it right to do so, without fear of adverse consequences. 99 Recently, in Makudi v Baron Triesman Of Tottenham, the England and Wales Court of Appeal suggested that there may be circumstances where Art 9 protection will extend to extra-Parliamentary speech. The Court opined that such cases will be infrequent and will generally possess two characteristics: there is a “public interest in repetition of the Parliamentary utterance which the speaker ought reasonably to serve” and there is so close a nexus between the occasions of the speaker’s speaking, in and then out of Parliament, that the prospect of his or her obligation to speak on the second occasion (or the expectation or promise that he or she would do so) is “reasonably foreseeable at the time of the first” and his or her purpose in speaking on both occasions is “the same or very closely related”. 100 This case is yet to be considered by an Australian court.

97 98

v Chatterton (1986) 46 SASR 1; Beitzel v Crabb [1992] 2 VR 121 at 127; Rann v Olsen (2000) 76 SASR 450 at 482. Whether a statement made in a media interview can ever be regarded as a “proceeding in parliament” which would attract absolute privilege is discussed in [4.150]. Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [21]. Buchanan v Jennings [2005] 2 All ER 273 at 282-283. Mees v Roads Corporation (2003) 128 FCR 418 at 445-446; Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [23]. A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [84]. Peters v Cushing [1999] NZAR 241.

99 100

Buchanan v Jennings [2005] 1 AC 115 at 133. Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [25].

94 95 96

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Ambit of the immunity: “effective” repetition of statements made in parliament [4.110] In the case of effective repetition, a member – usually in a media interview – does not repeat verbatim the defamatory statements he or she made in parliament, but states that he or she “adopts”, “adheres to”, “confirms” or “does not resile from” what he or she said in parliament. To affirm a statement made in parliament is different from merely agreeing that certain comments were made. A member cannot be sued for simply acknowledging that he or she made certain statements in parliament. 101 This is because, in order to succeed, the plaintiff would have to sue on the original statement, which cannot be done. To constitute an effective repetition, the member must actually “adopt” the statement or republish it by reference. 102 To be successful in a defamation action against a member who has effectively repeated defamatory comments outside parliament, the defamed person will need to rely on the statements made inside parliament in order to give meaning to the effective repetition. The question is whether this can be done.

The position under Article 9 [4.120] In Beitzel v Crabb, 103 a plaintiff sued a member who had made defamatory comments about the plaintiff in the House then, in a subsequent radio interview and press conference, said that he stood by what he had said. The member sought to have the action struck out on the basis that it was founded on words spoken in the House. However, the court took the view that the action was founded on what the member had said in the interview and press conference. Even though the words spoken in the House were not repeated, there was a sufficient temporal and substantive connection in the minds of the public between the words spoken in the House and the words spoken in the interview and press conference for there to have been a defamatory publication by adoption. 104 The same result was reached by the New Zealand Court of Appeal and confirmed by the Privy Council in Buchanan v Jennings. 105 The case concerned a member of parliament (Jennings) who reportedly told a journalist in an interview conducted after he had made defamatory comments about Buchanan in the New Zealand House of Representatives, that he “did not resile” from what he had said. A report of the interview was duly published. Jennings was sued by Buchanan in respect of what he had said to the journalist, on the basis that publication in the newspaper was a natural and foreseeable consequence of conducting the interview. 106 Jennings applied to have the case struck out on the ground that the statements 101 102 103 104 105 106

Thus a member, when questioned about comments made in the house, is entitled to say “yes, I did say that”: Griffiths v Lewis (1845) 14 LJQB 197. This would occur if the defendant said: “I stand by what I said in parliament” or “what I said yesterday in parliament was true”. Beitzel v Crabb [1992] 2 VR 121. The court did not decide whether Hansard could be tendered to prove what had been said in the house: Beitzel v Crabb [1992] 2 VR 121 at 128. The defamation action was ultimately settled. Buchanan v Jennings [2002] 3 NZLR 145 (New Zealand Court of Appeal); Buchanan v Jennings [2005] 1 AC 115 (Privy Council). See [3.450].

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made outside the House could not, in themselves, found an action in defamation because, standing alone, they were meaningless, while the statements made inside the House were privileged and could not be relied upon. The New Zealand Court of Appeal, by a majority of 4:1, 107 and subsequently the Privy Council, 108 found for Buchanan. It was held that if a plaintiff can show that there has been an effective repetition of a defamatory statement made in parliament, the member who made it can be held liable in defamation, just as he or she would be liable if the comments had been repeated verbatim. 109 Neither the New Zealand Court of Appeal nor the Privy Council regarded this conclusion as infringing the principles that underlie the absolute privilege accorded to parliamentary statements, as both courts took the view that Buchanan’s cause of action was based on the extra parliamentary statement, that is, on Jennings’ repetition, and did not call into question Jennings’ earlier statement in parliament or question the propriety of Jennings’ behaviour as a parliamentarian, or his state of mind, motives, intention etc. The fact that Buchanan needed to use the parliamentary record to prove what Jennings had effectively said outside the House did not infringe parliamentary privilege. The reference simply proved as a historical fact that certain words were uttered, a usage of Hansard which is permissible and non-contentious. 110 If the newspaper that published Jennings’ comments had been sued, it too would have been liable. 111 Moreover, a media organisation that directly endorsed a defamatory statement made by a member in parliament would presumably also attract liability. Both courts were at pains to point out that the right of members to speak their minds in parliament without the risk of incurring liability remained untouched and absolute. Liability will arise only when the member, having spoken his or her mind, chooses to actually or effectively repeat his or her statement outside the House. Thus the only perceived repercussion of the decision is that members will be forced to be more circumspect about their extra parliamentary comments. The decision in Buchanan v Jennings was not well received in New Zealand 112 and has been criticised in Australia. 113 The New Zealand Parliament Privileges Committee responded 107 108 109

Buchanan v Jennings [2002] 3 NZLR 145. The majority consisted of Richardson P, Gault, Keith and Blanchard JJ. Tipping J dissented. Buchanan v Jennings [2005] 1 AC 115. The same principles would presumably apply to defamatory statements made before a parliamentary committee then effectively repeated outside the committee.

110 111

Buchanan v Jennings [2005] 1 AC 115 at 132. While the media are protected by qualified privilege for fair and accurate reports of a parliamentary proceeding, a report of what is said in an interview is not a report of a parliamentary proceeding. Thus the media would have to rely on some other defence to escape liability.

112

J Allan, “Parliamentary Privilege: Will the Empire Strike Back?” (2002) 20 New Zealand Universities Law Review 205; D McGee, “The Scope of Parliamentary Privilege” [2004] New Zealand Law Journal 84; PA Joseph, “Parliamentary Privilege and Effective Repetition: Constitutional Review” [2003] New Zealand Law Review 428. Western Australian Legislative Assembly Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings Report No 3 (2006); Senate Privileges Committee, Parliament of Australia, Effective Repetition 134th Report (2008). The decision is declared to be incorrect in Odgers’ Australian Senate Practice: Evans and Laing (eds), (13th ed, 2012), p 57.

113

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by issuing a report in which it recommended that the New Zealand Parliament enact legislation to reverse the decision. 114 There are a number of objections to the decision, many of which find expression in the strong dissenting judgment of Tipping J in the Court of Appeal. First, it has been argued that the decision poses a threat to the long standing principle of mutual restraint between the courts and parliament, as it permits parliamentary statements to be put directly to the court as constituting the primary evidence of the defamation. 115 Thus the court is directly involved in judging the quality of parliamentary proceedings. Secondly, it has been asserted that the use of parliamentary debates in effective repetition contexts does infringe Art 9, because reference to what was said in parliament is essential in order to give meaning to the extra parliamentary adoption or affirmation. 116 In Buchanan v Jennings, reference to Jennings’ words in parliament was necessary in order to identify both the plaintiff and the defamatory meaning. In so far as the plaintiff in a defamation action is impliedly asserting the falsity of the defamatory comments, the truth of what was said in parliament is being “impeached” or “questioned”, the very action that Art 9 prohibits. 117 Thirdly, it has been argued that the Privy Council’s decision may have a detrimental impact on the free speech of members while they are in parliament, notwithstanding the Privy Council’s assertion that the decision will only make members more reticent about what they say outside of parliament. The New Zealand Privileges Committee explained that there is an expectation on the part of the media and the public that a member will respond publicly to comments made in the House, even if minimally. This expectation will have a restraining impact on what members say in parliament, particularly if they have given commitments to do subsequent interviews and anticipate that they might be questioned by a journalist and be found to have effectively repeated their comments. 118 Fourthly, it is anticipated that the decision will have a chilling effect on public debate and political free speech. For their part, members may be less inclined to give interviews in which they discuss or allude to what they have said in parliament, and media organisations may be less willing to seek interviews with members if it might expose them to liability for publishing a member’s effective repetition. The net result is that public debate on important public issues might be stymied. Fifthly, Tipping J expressed concern that the doctrine of effective repetition is too uncertain, and too difficult to distinguish from mere agreement that certain words were uttered, which is clearly not 114

115 116

117 118

New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings, (May 2005). The Western Australian Legislative Assembly Procedure and Privileges Committee also recommended that legislation be enacted to prevent parliamentary proceedings from being used to establish what is effectually, but not actually, said outside parliament, although in terms different to that recommended by the New Zealand Privileges Committee: Effective Repetition: Decision in Buchanan v Jennings Report No 3 (2006). New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), p 5. New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), Appendix C; A Geddis, “Defining the Ambit of the Free Speech Privilege in New Zealand’s Parliament” (2005) 16 Public Law Review 5 at 15. The same comment would apply had Jennings sought to raise a defence of truth, as this would also have required the court to examine what had been said in parliament. It would be possible for a seasoned journalist to manipulate a member to do just that.

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actionable. 119 Finally, the principle of effective repetition espoused in Buchanan v Jennings is not confined to the defamation context. The New Zealand Committee of Privileges expressed concern that the principle might be used to render members criminally liable (for example, for sedition, contempt of court, incitement to racial hatred) or liable for other civil wrongs (such as an action for breach of confidence). 120 Despite the earlier recommendations of its Privileges Committee, the New Zealand parliament did not act to reverse the decision in Buchanan v Jennings until 2014. One of the express purposes of the Parliamentary Privilege Act 2014 (NZ) is to “abolish and prohibit evidence being offered or received, questions being asked, or statements, submissions, or comments made, concerning proceedings in Parliament, to inform or support ‘effective repetition’ claims and liabilities in proceedings in a court or tribunal and exemplified by the decision in Buchanan v Jennings”. 121

The position under s 16(3) [4.130] The position in relation to effective repetition and s 16(3) was considered by the Queensland Court of Appeal in Laurance v Katter. 122 In this case, a member made certain remarks in parliament then effectively adopted them in a subsequent media interview. He was sued by the plaintiff. The Court of Appeal agreed that reference to the remarks that had been made in parliament in order to give meaning to the extra parliamentary statement was not permitted by a literal construction of s 16(3), and that the only way to avoid this result was to read down s 16(3) or hold it invalid. The majority were willing to do so. Davies JA held that s 16(3) should be read down so that it only prohibited the receipt in a court or tribunal of evidence which would impair or inhibit freedom of speech in parliament. On the facts, Davies JA found that the plaintiff was not alleging any impropriety against the member for what he had said in parliament; the plaintiff was seeking only to establish what was incorporated in statements made outside the house. Since the member remained free to say what he did in parliament, the reference to the words he had spoken in the house was not capable of impairing his freedom of speech. Pincus JA went further and invalidated s 16(3) in its application to defamation actions, with the result that the plaintiff was entitled to make out his case by relying on what was said by the member in parliament. Fitzgerald JA dissented. The interpretations of s 16(3) adopted by Davies JA and Pincus JA have not been followed, 123 and Odgers’ Australian Senate Practice emphatically states that the case is not 119

120 121 122 123

Buchanan v Jennings [2002] 3 NZLR 145 at [162]-[163]. The House of Commons and House of Lords Joint Committee on Parliamentary Privilege observed that the “imperceptible differences of emphasis” makes it very difficult to draw the line between the two: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [206]. See also Makudi v Baron Triesman Of Tottenham [2014] EWCA (Civ) 179 at [18]. New Zealand Privileges Committee, Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings (May 2005), p 6. Parliamentary Privilege Act 2014 (NZ), s 3(2)(d). Laurance v Katter (1996) 141 ALR 447. The matter came before the Court of Appeal on a demurrer to the defence. See Rann v Olsen (2000) 76 SASR 450 at 471; R v Theophanous [2003] VSCA 78 at [69].

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authoritative. 124 However, the decision has not been reconsidered in the light of Buchanan v Jennings. The Senate Privileges Committee has recommended that s 16(3) be amended to clarify that it does not permit an effective repetition to found a cause of action. 125

Ambit of the immunity: actions brought by members [4.140] Courts have had to consider the role of Art 9 where a defamation action is instituted by a member of parliament against a non-member who has criticised the member’s speeches or actions. This issue is of particular relevance to the media, since media organisations are frequently the defendants in such actions. A media organisation in this position may seek to raise a defence, for example, that the allegedly defamatory publication is a fair and accurate report of a debate or proceeding in parliament which attracts qualified privilege, or that the allegedly defamatory statements were true or constituted honest opinion. In order to establish these defences, the media organisation may wish to produce and examine statements made by the member in parliament. If Art 9 prohibits a court from examining such statements in order to resolve the member’s legal action, this has implications for what the media can publish without being exposed to liability in defamation. In Wright & Advertiser Newspapers Ltd v Lewis 126 the South Australian Supreme Court held that Art 9 does not prevent a defendant from challenging the truth or bona fides of statements made in parliament in circumstances where the maker of the statement has initiated the proceedings. According to King CJ, gross injustice would result if the position were otherwise. It would mean that a member of parliament could sue for defamation in respect of criticism of his or her statements or conduct in parliament, but the defendant would be precluded from alleging and proving that what was said about the member was true etc. According to King CJ: This would amount to a gross distortion of the law of defamation in its application to such a situation. Defamation in law is by definition an untrue imputation against the reputation of another. …. If the defendant were precluded from proving the truth of what is alleged, the Member of Parliament would be enabled to recover damages, if no other defence applied, for an imputation which is perfectly true. Moreover the defence of fair comment would often be unavailable … because it would not be permissible to prove the factual foundation for the expression of opinion. The defence of qualified privilege might be seriously inhibited because the defendant would be prevented from answering an allegation of express malice by proving facts as known to him. 127

The Court justified its decision to limit the privilege by explaining that it would not inhibit members from exercising their right to free speech, because members would be aware that their actions or motives could be examined in court only if they chose to institute proceedings which rendered such an examination necessary. 128 124 125 126

Evans and Laing (eds), (13th ed, 2012), p 56. Senate Privileges Committee, Parliament of Australia, Effective Repetition 134th Report (2008). Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416.

127 128

Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 421-422. Wright & Advertiser Newspapers Ltd v Lewis (1990) 53 SASR 416 at 426.

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Wright & Advertiser Newspapers was not followed in Prebble v Television New Zealand Ltd. 129 In that case, the Privy Council, on appeal from the New Zealand Court of Appeal, held that it was an infringement of parliamentary privilege for any party to legal proceedings to bring into question words spoken or actions done in parliament by suggesting, whether by direct evidence, cross-examination, inference or submission, that they were untrue, misleading, or instigated for improper motives, even where such suggestions were advanced by way of defence to proceedings instituted by a member of parliament. 130 The Privy Council appealed to a long line of authority which supports a separate and wider principle of non-intervention of which Art 9 is but one manifestation, namely, that courts and parliaments have separate roles, and that both institutions are astute to recognise those roles and exercise mutual restraint in order to avoid conflict. 131 From the courts’ perspective, the principle obliges courts not to allow any challenge to be made to what is said or done within the walls of parliament in the performance of its legislative functions and in the protection of its established privileges. The Privy Council was also concerned that the position taken in Wright & Advertiser Newspapers effectively empowers an individual member to determine whether a privilege that belongs to parliament itself could apply. 132 In the view of the Privy Council, “the decision of an individual member cannot override that collective privilege of the house to be the sole judge of such matters”. 133 The Privy Council recognised the impact of their decision on defendants in defamation actions brought by members, and conceded that it may have a chilling effect on the freedom of the media to engage in robust criticism “of the actions of those elected to power in a democratic society”. 134 However, it held that the need for parliament to be able to exercise its powers freely on behalf of electors took precedence. 135 In Rann v Olsen, the Full Court of the Supreme Court of South Australia had to consider the impact of s 16(3) on a defamation action brought by a member. 136 Those judges who regarded s 16(3) as merely declaratory of Art 9 were constrained to construe its meaning by reference to Art 9 and the cases which had interpreted it, including Wright & Advertiser Newspapers. These judges held that Wright & Advertiser Newspapers was wrongly decided. By contrast, those judges who regarded s 16(3) as having extended the reach of Art 9 were not controlled by existing judicial interpretations of the article and were therefore not strictly required to determine whether Wright & Advertiser Newspapers was correct. Nevertheless, these judges agreed that the reasoning adopted in Wright could not be accommodated within s 16(3). Unlike Art 9, whose terms are brief and general, s 16(3) is detailed and specific, and it was simply not possible to read down the section to deny it any application where the 129 130 131

132

Prebble v Television New Zealand Ltd [1995] 1 AC 321. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 337. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 332. This meaning of this wider principle, which is often referred to as the “exclusive cognisance” or “exclusive jurisdiction” of parliament and the way in which it differs from Art 9 is explained at length in R v Chaytor [2011] 1 AC 684. See [4.20]. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335.

133 134

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335. Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336. The same point is made in Campbell (2003), p 109.

135 136

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 336. Rann v Olsen (2000) 76 SASR 450. The context was a case stated by the trial judge.

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plaintiff is a member of parliament. In so deciding, the majority held that s 16(3) had to be interpreted in light of the principle of “non-intervention” expounded in Prebble 137 which operates to foreclose judicial inquiry if the purpose of that inquiry is to question or rely on the truth of what is said in parliament. 138 Some members of the court rejected the view espoused by Davies J in Laurance v Katter that s 16(3) could be read down to apply only where the court concluded that its application in a particular case would impair freedom of speech in parliament. Doyle CJ held that parliament itself has made the judgment about when the section should apply, and that judgment has been made “by reference to the purpose of the line of inquiry, rather than by reference to a court’s conclusion as to the likely ultimate effect on freedom of speech in parliament”. 139 According to Doyle CJ, the approach taken by Davies JA is destructive of freedom of speech, because a member of parliament would never know at the time a statement is made, what view a court might take. 140 Further, it would make the courts the ultimate arbiters of the effect on freedom of speech. The effect of the decisions in Prebble and Rann v Olsen is that under both Art 9 and s 16(3), parliamentary materials cannot be used as a sword to maintain a cause of action brought against a member, or as a shield to defend a cause of action brought by a member. Notwithstanding its conclusion, the South Australian Supreme Court was troubled by the injustice that a refusal to read down the freedom can cause to a defendant in an action brought by a member. 141 The court contemplated that there might be circumstances in which it would exercise its power to stay the proceeding. The power to order a stay had been considered in Prebble v Television New Zealand Ltd. 142 Although not granted on the facts, the Privy Council postulated that the interests of justice might require proceedings to be stayed if the exclusion of parliamentary material rendered it impossible for the issues raised in the action to be fairly determined. 143 However, the court was adamant that a stay would be granted only in extreme cases, since the effect is to prevent the member who has been defamed by the media or a member of the public from vindicating his or her reputation in the courts. Extreme circumstances would exist where the whole subject matter of the alleged defamation relates to the member’s conduct in the house so that the effect of the privilege is to exclude virtually all the evidence necessary to justify the libel. According to the Privy Council: If such an action were to be allowed to proceed, not only would there be an injustice to the defendant but also there would be a real danger that the media would be forced to abstain from

137 138 139 140 141 142 143

Rann Perry Rann Rann

v Olsen (2000) 76 SASR 450 at 472-474 per Doyle CJ (with whom Mullighan J agreed), at 493 per J. v Olsen (2000) 76 SASR 450 at 474 per Doyle CJ. v Olsen (2000) 76 SASR 450 at 474.

Rann v Olsen (2000) 76 SASR 450 at 474. Rann v Olsen (2000) 76 SASR 450 at 491. Prebble v Television New Zealand Ltd [1995] 1 AC 321. Presumably this principle is not confined to defamation actions brought by members, but would apply whenever the application of the privilege would work a serious injustice.

[4.140] 177

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By contrast, where the exclusion of parliamentary material would only have a limited impact on the case, the case will proceed. 145 Following the decision in Prebble, s 13 was inserted into the Defamation Act 1996 (UK) permitting a member to waive the privilege in so far as it concerned that member, and thereby secure the continuance of an action. The provision was very controversial and has recently been repealed. 146 In Australia, the privilege conferred by Art 9 cannot be waived by an individual member or by a house acting alone. 147 Nor is there any provision for waiver of the privilege in s 16. 148 Since the privilege belongs to parliament itself, it can be waived only by valid legislation. Some commentators disagree with the broad interpretation given to Art 9 and with s 16(3), and regard the most desirable position as that taken in R v Murphy and in Wright & Advertiser Newspapers Ltd v Lewis. 149 They argue that parliamentary privilege has been inflated at the expense of the right of citizens and the media to criticise members of parliament.

Proceedings in parliament The position under Article 9 [4.150] The immunity afforded by Art 9 applies only to “proceedings in parliament”. The meaning of this phrase is critical, since it governs the ambit of the privilege. The meaning attributed to this phrase has a flow on effect for the media, since the media enjoy a qualified privilege in defamation for fair and accurate reports of “proceedings in parliament”. 150 While the central focus of the phrase is on what is said and done within the parliamentary chamber,

144 145

146 147 148 149

150

Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 338. A stay of proceedings was granted in Allason v Haines [1995] TLR 438. In Rann v Olsen the majority held that, on the facts, it was premature to determine whether the interests of justice demanded a stay and thus refused to answer the question at that stage of the proceedings. Perry and Prior JJ dissented on this issue, holding that the circumstances relevant to an exercise of the discretion were clearly established and would not be affected by the course of the trial. Deregulation Act 2015 (UK), Sch 23. See, for example, Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 20; Rowan v Cornwall (No 5) (2002) 82 SASR 152 at 181-182. Hamsher v Swift (1992) 33 FCR 545 at 564. Harders (1993) 67 Australian Law Journal 109; G Marshall, “Impugning Parliamentary Impugnity” [1994] Public Law 509; D O’Brien, “Parliamentary Privilege and the Implied Freedom of Speech” (1995) 25 Queensland Law Society Journal 569; S Walker, “The Courts, Parliamentary Privilege and the Media” (1999) 1 UTS Law Review 82. For a contrary view see: Evans and Laing (eds), (13th ed, 2012), pp 46-49; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendation 1. Note, however, that the meaning assigned to “proceedings in parliament” for the purpose of delineating the freedom of speech enjoyed by parliamentarians does not automatically control the meaning of the phrase as it applies to qualified privilege for fair reports by the media. Legislation might curtail the meaning of “proceedings in parliament” for the purposes of qualified privilege.

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it must be emphasised that the phrase has a “functional” rather than a geographic base. 151 It is beyond doubt that “proceedings in parliament” encompass not only statements made in debates in a House, but also evidence given before a parliamentary committee, 152 papers presented to a House, 153 and petitions tabled in a House. 154 It is unclear whether discussions and correspondence between members of parliament 155 or between members and ministers on matters that might be raised in parliament 156 are proceedings in parliament. Members of the public who have corresponded with members of parliament are clearly protected by absolute privilege under Art 9 once the correspondence is read or tabled in the house, but the position is less clear in respect of correspondence which has not been incorporated into a parliament’s proceedings. 157 Not every act performed by a member of parliament in the course of their occupation is treated as a proceeding in parliament. 158 Tweets and emails sent from the parliamentary chamber are not regarded as such. 159 Nor is the making of a claim for parliamentary expenses. 160 It has been explained that a member who repeats verbatim outside parliament what he or she said inside parliament is not protected by absolute privilege and can be sued or 151

B Wright, Patterns of Change: Parliamentary Privilege, Parliamentary Studies Paper 2 (2008), http://www.parliamentarystudies.anu.edu.au/pdf/publications/PSP02_Wright.pdf.

152 153 154

Goffin v Donnelly (1881) 6 QBD 307. See also: Parliamentary Committees Act 1991 (SA), s 31. Holding v Jennings [1979] VR 289. Lake v King (1667) 1 Wms 131; 85 ER 128; Re the Royal Commission into the Use of Executive Power; The Queen v Parry (1992) 92 A Crim R 295. Communications between members of parliament include discussions in caucus and letters sent by members of parliament to Ministers on matters that might be the subject of questions in the house: E Campbell, “Reporting of Parliamentary Proceedings” (2000) 5 Media and Arts Law Review 67 at 72. See Huata v Prebble [2004] 3 NZLR 359. The House of Commons, in the Strauss case, did not endorse the opinion of its Committee of Privileges that a member’s correspondence with a Minister regarding a statutory body was a “proceeding in parliament”: HC Debates 591, 8 July 1958, 245. For further discussion see: Re the Royal Commission into the Use of Executive Power; The Queen v Parry (1992) 92 A Crim R 295; Campbell (2003), Ch 3. See generally E Campbell and M Groves, “Correspondence With Members of Parliament” (2006) 11 Media and Arts Law Review 227. Members of the public who have corresponded with members of parliament may be able to claim qualified privilege of the “interest/duty” variety: R v Rule (1937) 2 KB 375. Moreover, a person who initiates reprisals against a member of the public in consequence of the fact that that member of the public gave information to a member of parliament for use in parliament may be found to have committed a contempt of parliament, irrespective of whether the correspondence was a “proceeding in parliament”: Queensland, Legislative Assembly, Committee of Privileges, Possible Improper Action Against Dr William de Maria 72nd report (June 1998). The report was adopted by the Senate. See also, Legislative Assembly Privileges Committee, Parliament of Victoria, Report on the Complaint by the Member for Preston (July, 2006). O’Chee v Rowley (1995) 150 ALR 199 at 203; Slipper v Magistrates Court of the ACT [2014] ACTSC 85 at [48]-[50].

155

156

157

158 159 160

Commonwealth, House of Representatives, Parliamentary Debates, 25 November 2009, p 12863 (The Speaker). R v Chaytor [2011] 1 AC 684. In this case, members of the United Kingdom parliament relied on parliamentary privilege to resist prosecution in the courts for lodging fraudulent travel claims, claiming that the submission of claims for parliamentary expenses was a “proceeding in parliament” and a matter within parliament’s exclusive cognisance. These arguments were rejected by the United Kingdom Supreme Court. See: Y Tew, “No Longer a Privileged Few: Expense Claims, Prosecution and Parliamentary Privilege” (2011) 70(2) The Cambridge Law Journal 282.

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prosecuted in respect of that statement. However, Canadian authorities have suggested that in certain circumstances, statements made by members outside the house regarding matters that have already been discussed in the House will attract absolute privilege on the basis that they are an extension of “proceedings in parliament”. This view had its genesis in an earlier statement of the Privy Council that members of parliament should be protected whenever they are exercising their real or essential functions as members, and that these functions are not confined to what is said and done on the floor of the House. 161 Thus in Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd, 162 the Ontario Court of Appeal held that a telegram sent by the Canadian Prime Minister to a company, and a press release issued by one of his ministers, were “proceedings in parliament” because they were a legitimate and lawful discharge of their duties as ministers of the Crown. The dispatch of the telegram by the Prime Minister was making good his word to the company that it would be informed of some guidelines determined by the government, and in the press release, the minister was “announcing publicly and for the benefit of the public, the guidelines implementing government policy as previously announced in the House”. It has been suggested that the case is confined to the enunciation in good faith of government policy on a matter of public interest. 163 In Australian Broadcasting Corporation v Chatterton, Prior J refused to hold that a television interview given by a member regarding a question he had asked in the House was a proceeding in parliament. 164 Zelling ACJ, however, was prepared to entertain the possibility that a member who repeated statements made in parliament was protected by absolute privilege. 165 It has been suggested that today, Australian courts are more likely to take the view that sufficient protection is available to a member under the extended defence of qualified privilege accorded by Lange v Australian Broadcasting Corporation. 166 In 2011, in a decision described as having rewritten the parameters of parliamentary privilege, 167 the New Zealand Supreme Court held that an occasion will be regarded as privileged only if this is “necessary for the proper and efficient conduct of the business of the House”. 168 Application of this necessity test to the facts of the case resulted in a finding that briefings supplied by a civil servant to a Minister to assist him to give an oral answer in parliament to a written question lodged with the Clerk of the House was not protected by parliamentary privilege. 169 The case has been trenchantly criticised for employing a common law test to delineate a privilege conferred by statute. 170 Joseph has contended that while a necessity test is an appropriate mechanism for fixing the parameters of parliament’s privilege 161

Attorney-General of Ceylon v de Livera [1963] AC 103 at 120-121.

162

163 164

Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1972) 23 DLR (3d) 292; affirmed in Roman Corp Ltd v Hudson’s Bay Oil & Gas Co Ltd (1973) 36 DLR (3d) 413. See also Re Clark and Attorney-General of Canada (1978) 81 DLR (3d) 33. Stopforth v Goyer (1978) 87 DLR (3d) 373 at 382; Beitzel v Crabb [1992] 2 VR 121 at 127. Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 35-36.

165 166

Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 at 18-19. Campbell (2003), p 14.

167 168

PA Joseph, “Constitutional Law” [2012] 3 New Zealand Law Review 515 at 527. Attorney-General (NZ) and Gow v Leigh [2012] 2 NZLR 713.

169 170

The Minister’s answer in parliament would, however, be protected. Joseph [2012] 3 New Zealand Law Review 515.

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of exclusive cognisance, since this has a common law foundation, it should not be used to ascertain the scope of freedom of speech, which has a statutory foundation. In Joseph’s view, the question that should have been posed by the Court was whether the defendant’s communication with the Minister was a “proceeding in parliament”; if so, it should attract the protection of Art 9. 171 The case has not been considered by an Australian court and has since been overridden by s 10 of the Parliamentary Privilege Act 2014 (NZ).

The position under legislation [4.160] The phrase “proceedings in parliament” has been legislatively defined in the Commonwealth and the Northern Territory to mean all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a house or committee. 172 Specific examples are listed, which are expressed not to limit this general definition. They are: evidence given before a House or committee; the presentation or submission of a document to a House or a committee; the preparation of a document for purposes of or incidental to the transacting of any such business; 173 and documents formulated, made or published by or pursuant to an order of a House or committee. A definition of “proceedings in parliament” has also been adopted in Queensland. 174 and New Zealand. 175 These statutory definitions appear to give the phrase a wider meaning than it enjoys under Art 9. 176 In particular, the references to words spoken, acts done and documents prepared “for the purposes of or incidental to” the transacting of the business of the house or committee may bring correspondence and communications between members of parliament, and between members of the public and members of parliament within the description of “proceedings in parliament”. However, even if the provision is given a generous interpretation, 177 it does not follow that all correspondence to members will be protected by parliamentary privilege. Indeed, it has been said that outsiders cannot “manufacture 171 172

173

174 175 176 177

Joseph [2012] 3 New Zealand Law Review 515 at 530. Parliamentary Privileges Act 1987 (Cth), s 16(2); Legislative Assembly (Powers and Privileges) Act (NT), s 6. The provision also applies in the Australian Capital Territory by virtue of s 24 of the Australian Capital Territory (Self Government) Act 1988 (Cth). The definition only applies for the purposes of Art 9 and s 16; it does not govern the ambit of the qualified privilege enjoyed by the media: Campbell, (2000) 5 Media and Arts Law Review 67 at 73. Section 16(2)(c) was considered in O’Chee v Rowley (1997) 150 ALR 199 in the context of a document retained by a member for the purpose of transacting parliamentary business. The protection given to the records and correspondence of members was the subject of a report by the House of Representatives, Standing Committee of Privileges Report of the Inquiry into the Status of the Records and Correspondence of Members PP 417 (2000). See also: J Moore, “David, Goliath and the Stone of Judicial Review: the Shield of Parliamentary Privilege in Stewart v Ronalds” (2011) 26(2) Australasian Parliamentary Review 70; In the Matter of the Board of Inquiry into Disability Services [2002] ACTSC 28; British American Tobacco Australia Ltd v Secretary, Department Of Health And Ageing (2011) 281 ALR 75 at 89-90. Parliament of Queensland Act 2001 (Qld), s 9. Parliamentary Privilege Act 2014 (NZ), s 10. Campbell and Groves, (2006) 11 Media and Arts Law Review 227 at 239. In Erglis v Buckley [2005] QSC 25; Erglis v Buckley [2005] QCA 404, a group of nurses sent a letter to the Queensland health minister which recorded views they had expressed to the minister at a meeting, and which was written at the invitation of the minister. It contained defamatory comments about Erglis. Later the same

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parliamentary privilege for a document by the artifice of planting the document upon a parliamentarian”. 178 Whether or not correspondence from a constituent becomes a proceeding in parliament ultimately depends on whether the member makes it parliamentary business.

Is s 16(3) a valid law? [4.170] The validity of s 16(3) has been challenged on several grounds. One is that it causes a court to exercise its judicial power in a manner that is inconsistent with the essential character of a court and with the nature of judicial power. In so far as it prohibits the cross examination of witnesses in court on evidence they have previously given before a parliamentary committee, it is said to inhibit the court in ascertaining the truth, and thus invalidly prevents a court from discharging its foremost judicial function. 179 Moreover, in so far as the operation of s 16 can oblige a court to stay proceedings in the interests of justice, it has been argued that it impairs judicial power, since it dictates the result of the case. 180 If s 16 is only declaratory of Art 9, and thus does not travel beyond s 49 of the Commonwealth Constitution, 181 the argument will fall to be determined according to whether s 49 is subject to implications to be found in Chapter III of the Constitution. Some judges take the view that it is not so subject. 182 If, on the other hand, s 16(3) makes new law, it might be thought that the contention that it requires a court to exercise its judicial power in a manner that is inconsistent with the essential character of a court is stronger. However, an argument to that effect was rejected in Rann v Olsen by those members of the court who were prepared to accept that s 16(3) extended the operation of Art 9. These judges found that s 16(3) is no different in substance from any other law that excludes certain evidence from the consideration of the court (such as evidence which is subject to legal professional privilege or public interest immunity), even if the evidence could have a decisive effect on the case. 183 day, the Minister read and tabled the letter in the Queensland Parliament. Erglis sued the nurses in defamation. The Queensland Court of Appeal held that the nurses were protected by parliamentary privilege in respect of the defamatory comments in the letter up to the time it was used in Parliament. It was held that the acts of composing, typing, printing and sending the letter to the Minister were acts done “in the course of, or for the purposes of or incidental to, transacting the business of the Assembly”. Accordingly, Erglis was not entitled to impeach or question them by bringing an action for damages for defamation against her fellow nurses. The consequence was that the privilege was able to be claimed by persons who were not members of parliament. The Court of Appeal was not perturbed by this result, stating that the relevant Queensland provisions did not in their terms confine the privilege to members of parliament. The crux in this case was that the minister had appropriated the document to proceedings in parliament when she invited the defendants to write the letter and undertook to read it out. The case is discussed in G Griffith, Parliamentary Privilege: Major Developments and Current Issues (Background Paper No 1/07, NSW Parliamentary Library Research Service, 2007), [6.5]. 178 179 180 181 182

183

O’Chee v Rowley (1997) 150 ALR 199 at 209. Harders (1993) 67 Australian Law Journal 109 at 140. E Campbell, “Parliamentary Privilege and Admissibility of Evidence” (1999) 27 Federal Law Review 367 at 374. Section 49 is discussed in [4.240]. See, for example, Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223. For an argument that s 49 does not confer unrestricted legislative power and is constrained by implied constitutional prohibitions see: Campbell, (1999) 27 Federal Law Review 367 at 376-381. Rann v Olsen (2000) 76 SASR 450 at 484-485.

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Conflicting views have been expressed as to whether s 16(3) infringes the implied freedom of political communication. While the provision confers unbridled freedom of communication on those who are involved in proceedings in parliament, it may operate to inhibit what people are prepared to say outside parliament by way of commentary on political proceedings because they may not be able to rely upon defences if they are sued for defamation. 184 Does this infringe the implied freedom? As explained in [4.130], in Laurance v Katter 185 Pincus JA held that s 16(3) was incompatible with the implied freedom, at least in relation to defamation actions, and therefore did not validly operate with respect to them. Davies JA was able to avoid having to resolve this constitutional issue by reading s 16(3) down so that it applies only where a court concludes that freedom of speech in parliament would be impaired. 186 Fitzgerald JA upheld the validity of s 16(3). In Rann v Olsen an argument was put to the court that in so far as s 16(3) prevented a defendant in a defamation action from tendering evidence, asking questions or making submissions for the purpose of questioning the truth of a plaintiff member’s statements made before a parliamentary committee (an interpretation that was ultimately accepted by the court) it was invalid. However, the court held that if s 16(3) merely enacts or declares the effect of Art 9, it is not capable of being invalid on the basis that it infringes the implied freedom of political communication. This is because s 49 of the Commonwealth Constitution is taken to enact the provisions of Art 9, and any implications drawn from other provisions of the Constitution (including the provisions which establish representative and responsible government) must give way to an express provision. 187 If, on the other hand, s 16 enlarges the protection given by Art 9 it has the potential to infringe the implied freedom, and the two limb test in Lange v Australian Broadcasting Corporation 188 would need to be applied to determine whether it is valid. First, does s 16 effectively burden freedom of communication about government or political matters in its terms, operation or effect? From the perspective of members and other participants in proceedings in parliament, s 16 enhances and encourages freedom of speech; indeed, this is its very purpose. However, in so far as the section operates to deprive persons who comment outside parliament on what is said and done in parliament of a defence to an action brought against them in defamation, it burdens freedom of speech. Such a burden is significant, and could have a chilling effect on what the media is prepared to publish about what occurs in parliament. Since s 16 was held to impose a burden on freedom of communication about political matters, it was necessary for the court to determine whether the burden is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of representative and responsible government. The court 184 185

Campbell (2003), p 102. Laurance v Katter (1996) 141 ALR 447.

186

It has already been explained that the “case specific” approach of Davies JA to s 16(3) was discounted in Rann v Olsen (2000) 76 SASR 450: [4.140].

187

Rann v Olsen (2000) 76 SASR 450 at 476. It should be noted, however, that there are arguments that the source of the power to enact s 16 is not s 49 alone, but s 49 in combination with s 51(xxxvi) and 51(xxxix), both of which are expressed to be “subject to the Constitution” and thus to the implied freedom. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

188

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answered this question in the affirmative, although not without hesitation. 189 A final resolution of this vexed issue awaits a decision of the High Court.

Freedom of speech and constitutional guarantees of access to courts [4.180] Jurisdictions which have a bill of rights may have to grapple with the relationship between the freedom of speech accorded to members of parliament under Art 9 and a provision in the bill of rights which confers on persons within that jurisdiction a right to have their rights and obligations determined by an independent and impartial tribunal in a fair and public hearing. 190 This question came before the European Court of Human Rights in A v United Kingdom in respect of defamatory comments made about “A”, a United Kingdom national, by a member of parliament in the UK House of Commons. 191 The Court held that the absolute privilege which prevents members of parliament from being sued for defamatory statements made in the house did not violate the right of access to a court conferred on UK nationals by the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the absolute privilege pursues legitimate aims 192 and there is a proportionate relationship between the means employed and the aims sought to be achieved. 193

Contempt of parliament [4.190] In addition to their privileges, Houses of Parliament possess certain powers which can be exercised to protect the integrity of their processes and to ensure that they and their committees and members are able to carry out their functions without interference. 194 They include the power to determine their own rules of conduct and procedure, the power to conduct inquiries (generally delegated to committees), the power to require the attendance of persons and the production of documents and the power to punish contempts of parliament. Although parliaments rarely invoke their power to punish contempts, the very existence of the 189

Doyle CJ with whom Lander and Mulligan JJ agreed. Prior J agreed with this result in the event that s 16(3) does extend the operation of Art 9 (a proposition with which he disagreed): at 491.

190

A bill of rights will invariably contain a provision to this effect. See, for example, European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 6; Canadian Charter of Rights and Freedoms, Art 11; United States Constitution Sixth Amendment; Bill of Rights Act 1990 (NZ), s 25; Human Rights Act 2004 (ACT), s 21; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 24(1). A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811. “A” also argued that the absolute privilege infringed a number of other articles in the Convention. These arguments were also rejected.

191 192

193

194

These aims are: to preserve the free speech of members so that they can engage in unhindered debate, and to regulate the relationship between parliament and the courts in order to achieve a separation of powers: A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [66], [71]. In fact, the court found that the immunity afforded to MPs in the United Kingdom is narrower than the immunity enjoyed by MPs in some of the other signatory states for the reason that: the immunity is designed to protect parliament as a whole, not to promote the interests of individual members; no absolute immunity is conferred on those who report parliamentary proceedings; the defamed person can petition parliament to have the statements retracted; and an MP who makes deliberately misleading statements can be dealt with for contempt by the House: A v United Kingdom (2002) 36 EHRR 917; [2002] ECHR 811 at [84]-[86]. The immunities and powers of parliaments are often collectively referred to as privileges, but as explained in Odgers’ Australian Senate Practice, they are quite distinct: Evans and Laing (eds), (13th ed, 2012), p 41.

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power and consequent risk of punishment has the potential to serve as a source of restraint on what is published by the media, and therefore to restrict the information received by the public. The nature of the contempt power and the restrictions it imposes on media organisations is the subject of this section.

What is contempt of parliament? [4.200] A contempt of parliament is an offence against parliament. However, what constitutes a contempt has not been exhaustively defined by legislation, nor, for the reasons explained in [4.20], has it been the subject of developed case law by the courts. Rather, whether a contempt has been committed is determined on a case by case basis by parliaments. The fact that parliaments are not bound by a system of precedent when making determinations makes it difficult to predict in any given situation whether a contempt will be regarded as having occurred. However, it is possible to make some general comments about contempt. First, although not capable of precise definition, a widely accepted working definition of contempt has been extracted from the extensive case law of the parliaments. “Contempt of parliament” is generally taken to encompass “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results … even though there is no precedent of the offence”. 195 The same can be said of acts or omissions that obstruct or impede a committee of a House. The Commonwealth, Northern Territory and Queensland Parliaments have elevated this working definition into a statutory limitation on the concept of contempt. In those jurisdictions, conduct (including the use of words) cannot constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member’s duties as a member. 196 Although neither the working definition nor the statutory limitation on contempt stipulate that an intention to obstruct or interfere with parliament is necessary, 197 in practice, most parliaments regard a culpable intention as essential to establish a contempt, 198 or at the least, highly relevant. 199 The difficulty in finding a culpable intention has enabled many persons to escape a finding of contempt. 195

Jack (ed), (24th ed, 2011), p 251.

196

Parliamentary Privileges Act 1987 (Cth), s 4; Legislative Assembly (Powers and Privileges) Act (NT), s 5; Parliament of Queensland Act 2001 (Qld), s 37(2). This has been described as a “threshold” or “indicative” definition of contempt: United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [271]; United Kingdom Parliament, Joint Committee on Parliamentary Privileges, HL Paper 30; HC 100 (2013) at [71].

197

House of Representatives Standing Committee of Privileges, Parliament of Australia, Report Concerning the Possible Unauthorised Disclosure of In Camera Evidence to the Defence Sub-Committee of the Joint Standing Committee on Foreign Affairs, Defence and Trade, June 2001, [1.9]. A culpable intention is regarded as essential by the Senate: Evans and Laing (eds), (13th ed, 2012), p 85.

198 199

See, eg, Australian Capital Territory, Legislative Assembly Standing Order 278; Western Australia, Legislative Council, Standing Orders, Sch 4.

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Secondly, while it is always a contempt of parliament to breach a privilege of parliament, a person can be guilty of contempt without breaching a parliamentary privilege. 200 Unlike privileges, which are specifically established, Parliament is free to find any act to be a contempt without the need for a precedent. 201 However, although breach of the privilege of free speech could be dealt with by parliament as a contempt, parliaments usually entrust the courts to ensure that they do not receive evidence which would infringe the privilege. 202 Thirdly, contempts of parliament can occur both within a house and outside its precincts, and can be committed by members of parliament and by strangers (such as journalists and media organisations). Finally, some acts which have been held to be in contempt of parliament are also criminal offences 203 which are tried and punished by the courts with all the usual protections. 204 Where this is the case, the House of parliament concerned can usually direct the Attorney-General (or other law officer) to institute legal proceedings either in addition to, or in lieu of, its own proceedings. 205 Although this concurrent jurisdiction between parliaments and

200

201

Memorandum by the General Council of the Bar, House of Commons HC 34 (1967-68), p 171; Joint Select Committee on Parliamentary Privilege, Parliament of Australia, Final Report, October 1984, [3.21], [3.22]; Senate Committee of Privileges, Parliament of Australia, Penalties for Contempt, Information Paper 95th Report, September 2000, p 2; Jack (ed), (24th ed, 2011), pp 191, 203; Evans and Laing (eds), (13th ed, 2012), p 41; Wright (ed), (6th ed, 2012), p 731. This is not strictly true of jurisdictions that have a statutory definition of contempt: Evans and Laing (eds), (13th ed, 2012), p 82.

202

An unsuccessful attempt to get parliament to deal with a breach of the privilege of free speech as a contempt occurred in 2009. During committal proceedings for rape charges brought against Victorian Legislative Council member Theo Theophanous, the Crown prosecutor, Ms Williams SC, quoted from a parliamentary speech Theophanous made in 2006 and proceeded to use it against him. After a Magistrate refused to commit him for trial, Theophanous wrote to the President of the Victorian Legislative Council, and raised with him whether the prosecutor had committed a prima facie breach of privilege. However, the Speaker did not give the matter precedence over other business andit was not pursued further: Victoria, Parliamentary Debates, Legislative Council, 11 August 2009, p 3881 (The President).

203

In Highway v Tudor-Stack [2006] NTCA 04 the Northern Territory Court of Appeal rejected an argument that the doctrine of separation of powers deprives parliaments of the ability to enact legislation which creates an offence at law for a matter that might equally be adjudged to be a breach of privilege or other contempt of parliament. See, for example, Criminal Code (WA), ss 56-61. A select committee of the Western Australian parliament recommended that these sections be repealed: Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009). However, the Legislative Council’s Committee on Procedure and Privileges recently expressed its disagreement with this recommendation: Standing Committee on Procedure and Privileges, Review of the Report of the Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament Report 29 (2014). The latter Committee regarded the Code offences as encapsulating the most serious forms of contempt and considered that they should be retained for two primary reasons: their status as criminal offences provides a significant deterrent against their commission and it is appropriate that the Council “retain an ability to refer such matters to the courts so that the offences may be adjudged within an environment having the highest standards of fairness and with all the expected legal and evidential safeguards and the strongest penalty provisions”: at [6.17]. In some jurisdictions, legislation deals expressly with directions to prosecute, for example: Parliamentary Privilege Act 1858 (Tas), s 11; Parliamentary Privileges Act 1891 (WA), s 15.

204

205

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the courts gives rise to the potential for conflicting decisions, 206 it is highly unlikely that a parliament would conduct an inquiry or exercise its contempt powers if legal proceedings were on foot. 207 In some jurisdictions legislation provides that a person cannot be proceeded against or punished twice for the same offence, whether as a breach of privilege or as an offence against an enactment or the common law. 208 Since in many cases it would be difficult, if not impossible, for courts to try such offences without reference to proceedings in parliament, parliamentary privilege is regarded as abrogated by necessary implication in relation to such evidence. 209 The unpredictability of contempt of parliament is exacerbated by the fact that even where a contempt has been found to have been committed, the form and severity of the punishment can vary greatly. However, the potential for variation is more theoretical than real. Whilst most parliaments possess the power to imprison or to impose other punishments in response to a finding of contempt, parliaments nowadays use their contempt powers with great reluctance and punishments are rarely inflicted. 210 In the vast majority of cases, a House resolves that its dignity is best maintained by taking no action or accepts an apology from the contemnor. In most jurisdictions, it is the practice for a House to refer a complaint regarding a potential breach of privilege or a contempt to its Committee of Privileges. 211 The committee investigates the complaint and makes a recommendation to the House, which then resolves whether to adopt the recommendation and what action to take. 212 Most Houses have laid down formal procedures that they will follow, both in relation to how matters of privilege and contempts can be raised and in relation to how an inquiry into such matters will proceed. 213 206

207

Western Australia, Response to United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report, Vol 2, Minutes of Evidence 10 February 1998, HC 214 1998/9. For a discussion of this issue of concurrent jurisdiction see: Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [6.1]-[6.13]. Evans and Laing (eds), (13th ed, 2012), p 86.

208

See, for example, Parliament of Queensland Act 2001 (Qld), s 47; Constitution Act 1975 (Vic), s 19A(9) (in the context of witnesses before parliament or parliamentary committees).

209

Legislative Council, Parliament of Western Australia, Select Committee of Privilege on a Matter Arising in the Standing Committee on Estimates and Financial Operations (2007), [2.67]. In 1977, the House of Commons accepted the advice of a 1967 committee and formally adopted a policy of restraint in relation to the exercise of its penal jurisdiction: CJ (1977-78), p 170 and 3rd Report of the Committee of Privileges, HC (1976-77), p 417. The United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 noted that this policy had markedly reduced the number of occasions when the house or a committee of privileges has considered such matters: at [21]. In practice, the federal Houses of Parliament do likewise. Nevertheless, “while the powers remain, so too does the possibility of their use”: J Waugh, “Contempt of Parliament in Victoria” (2005) 26 Adelaide Law Review 29 at 30. The committee dealing with privileges might be known by another name and might be a standing committee or a select committee. See R McDonald, “The Role of the Privileges Committee and the Relevancy of a Penal Jurisdiction of a House in Current-Day Parliaments” (2007) 22(2) Australasian Parliamentary Review 73.

210

211

212 213

The committee itself has no power to impose a penalty. See, for example: Commonwealth Parliament, Senate, Parliamentary Privilege, Resolutions Agreed to by the Senate on 25 February 1988; House of Representatives Standing Committee on Privileges and Members’ Interests, Parliament of Australia, Procedures of the Committee and the House in Relation to Consideration of

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The latter represents an attempt to accord natural justice and procedural fairness to witnesses and persons accused of contempt, in so far as it is possible for parliaments to do so.

Courts and contempt of parliament [4.210] Courts play a very limited role in relation to contempt of parliament, as they generally have no right to regulate the manner in which parliaments conduct their business. However, the proposition that parliament is the sole judge of whether a contempt has been committed is subject to some qualifications. According to Odgers’ Australian Senate Practice, in jurisdictions where parliaments have enacted a statutory definition of contempt, it is no longer possible for these parliaments to treat any act as a contempt. 214 Subject to the limits of judicial review, a court could overturn a punishment for contempt if the conduct for which a person was punished did not amount, or was not intended or likely to amount, to an improper interference with the House, committee or member. This may not be the case in Queensland. 215 The judgment of a house as to whether a contempt has been committed is expressed by its resolution and by any warrant committing the person to custody. Where a warrant for committal of a contemnor has been issued, courts may possess the power to examine the conclusion of the house as expressed in the warrant; it depends on whether the warrant specifies the ground of the commitment. In the absence of legislation to the contrary, it is not required to do so. 216 If the form of the warrant is general, the courts are incompetent to inquire into the nature of the contempt and the warrant is conclusive. 217 However, if the warrant does specify the ground of commitment, a court may determine whether the ground is sufficient in law to amount to a contempt. 218 Legislation in many Australian jurisdictions now requires a resolution and warrant committing a person for contempt to contain particulars of the matters constituting the offence. 219 This means that a person subject to committal could seek judicial review on the ground that the conduct could not be regarded as constituting a

214 215

216 217 218 219

Privilege Matters and Procedural Fairness PP 193 (2009); House of Representatives, Resolutions of the House, Procedures for the Protection of Witnesses before the Committee of Privileges and Members’ Interests; Procedures of the House of Representatives for Dealing with Matters of Contempt; Parliament of Queensland Act 2001 (Qld), ss 11, 40(1). Evans and Laing (eds), (13th ed, 2012), p 82. Despite the existence of a statutory definition of contempt, the Parliament of Queensland Act 2001 (Qld) provides that whether or not a contempt has been committed is ultimately for the Assembly to decide, acting on such advice it considers appropriate: s 38. Speaker of the Legislative Assembly of Victoria v Glass (1871) LR 3 PC 560. Burdett v Abbot (1811) 14 East 1; 104 ER 501; Case of the Sheriff of Middlesex (1840) 11 Ad & E 273; 113 ER 419. R v Richards; Ex parte Fitzpatrick & Browne (1955) 92 CLR 157 at 162. See, for example, Parliamentary Privileges Act 1987 (Cth), s 9; Legislative Assembly (Powers and Privileges) Act (NT), s 26; Parliamentary Privilege Act 1858 (Tas), s 7, but see s 10; Parliamentary Privileges Act 1891 (WA), s 11. See Campbell (2000) 5 Media and Arts Law Review 67 at 79.

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punishable offence. 220 Contempt cases in respect of which no warrant for the committal of the contemnor is issued cannot be reviewed. 221 Nor can the courts interfere if a parliament chooses not to treat an action as a contempt. The fact that contempts are dealt with internally by parliaments and not by the courts has attracted considerable criticism. 222 One major objection is that persons accused of committing a contempt do not enjoy the procedural and evidentiary protections that are afforded to accused persons in criminal proceedings tried in a court of law. For example, persons accused of contempt have no right to be heard in their own defence or to be represented by counsel and have no trial as such, notwithstanding that a finding of contempt can lead to imprisonment. Further, there is no appeal from a finding of contempt made by Parliament. As explained in [4.200], Parliaments have sought to overcome these criticisms by laying down procedures to be followed in inquiries into breaches of privilege and other contempts, but these protections are not legally enforceable entitlements. Objection has also been taken to the fact that in dealing with contempts, parliaments are both accusers and judges in their own cause and are thus unable to act as an independent tribunal. 223 This has led to a suggestion that the power to punish contempts should be transferred to the courts. 224 However, parliaments have shown considerable resistance to this suggestion, maintaining that a transfer of penal power to the courts would violate the doctrine of parliamentary sovereignty and the doctrine of separation of powers. 225 In Odgers’ Australian Senate Practice it is argued that it is no more incongruous that parliaments deal with allegations of contempt internally than that courts deal with allegations of contempt of court. If the courts are best placed to determine what interferes with the administration of justice, parliaments are probably best placed to 220 221

222 223 224

225

Campbell (2000) 5 Media and Arts Law Review 67 at 79. Although the Commonwealth legislation does not require a resolution imposing a fine for a contempt to include particulars of the conduct which led to the fine, it has been suggested that a person fined under the Act could, in an action for recovery of the fine, plead that the conduct for which the fine was imposed could not in law amount to a contempt: E Campbell, “Contempt of Parliament and the Implied Freedom of Political Communication” (1999) 10 Public Law Review 196 at 198. These criticisms are summarised in Evans and Laing (eds), (13th ed, 2012), pp 86-87. This criticism is expounded in Commonwealth Parliament, Joint Select Committee on Parliamentary Privilege PP 87/ 1984, [4.16], [7.2]. For example, the United Kingdom Joint Committee on Parliamentary Privilege recommended that the UK parliament’s penal powers over non-members be transferred to the courts: First Report, HC 214 1998/9 Recommendation 26. In 2007, Professor Geoffrey Lindell and Professor Gerard Carney recommended that the penal jurisdiction of the House of Representatives should be transferred to the High Court, provided the House retained the sole power to initiate judicial proceedings for contempt: Review of Procedures of the House of Representatives Relating to the Consideration Of Privilege Matters And Procedural Fairness (2007). Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [5.4]. The Committee warned against allowing the courts “to control the ability of parliament to defend itself from interference and disregard for its authority”. Other compelling reasons why the penal jurisdiction of parliaments should not be transferred to the courts are listed in [5.4]-[5.10] of this report. They include: the courts are not well placed to make decisions about what kind of conduct would obstruct or impede the working of parliament and parliaments can take timely action in response to a contempt whereas proceedings in the courts take time. Similar arguments have been made against the criminalisation of certain contempts: United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [70].

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determine which acts or omissions interfere with the performance of their functions. 226 This could be countered by an argument that courts are accustomed to ascertaining and applying the law to individual cases, whereas parliaments are not. It is also to be noted that parliaments rarely, if ever, imprison; at most, they reprimand and warn.

Contempt powers of the House of Commons [4.220] Before discussing the powers of the Australian parliaments to deal with contempts of parliament committed by the media, it is necessary to outline the powers possessed by the House of Commons to deal with such contempts. 227 This is because the majority of Australian parliaments define their powers, privileges and immunities by reference to those of the House of Commons. In most cases, the link is to the powers, privileges and immunities possessed by the House of Commons at a particular point in time, ranging from 21 July 1855 to 1 January 1989. It seems clear that the powers of the House of Commons to deal with contempts did not change significantly between these dates, except, perhaps, that by 1989 it was generally accepted that the House of Commons could not impose fines. When it is alleged or resolved that certain conduct by a non-member constitutes a contempt of parliament, the House of Commons has at least four powers that it can exercise. 228 First, the House can compel a person to attend before the House to be examined in relation to an allegation of contempt. 229 Secondly, the House of Commons can direct the Speaker to reprimand or admonish the person. 230 Thirdly, it can imprison the person. 231 The term of imprisonment can be for a fixed period, or until the person purges the contempt, or until the House resolves to release the person, but in any event, cannot extend beyond the duration of the existing session of the House. 232 Upon the prorogation of the House the offender is automatically released, although the House could order the offender to be re-arrested and imprisoned in the next session. The House of Commons has been loath to exercise its power to commit without any procedure for review and has not done so since 226

227

228

229 230

Evans and Laing (eds), (13th ed, 2012), p 87. Other reasons why parliaments should retain the power to punish contempts are listed on pp 87-90. See also Commonwealth Parliament, Joint Select Committee on Parliamentary Privilege PP 87/1984, [7.6]-[7.11]. The current powers of the House of Commons are discussed at length in Jack (ed), (24th ed, 2011), pp 191-201. The House of Commons also has power to deal with contempts committed by its own members, but these have no relevance to the media and will not be discussed. The origin of the power of the House of Commons to punish contempts is inherent in the parliament and lies in the peculiar medieval concept of the Parliament as a court of justice: Jack (ed), (24th ed, 2011), pp 192, 203-204. While the House of Commons no longer claims to be a court of record, the surrender of the claim was not accompanied by an abandonment of the concomitant powers that flowed from the notion that the House was a court: D Limon and WR McKay (eds), Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd ed, 1997), pp 131-132. See also Burdett v Abbot (1811) 14 East 1; 104 ER 501 at 554. Gosset v Howard (1845) 10 QB 411; 116 ER 158 at 172; Jack (ed), (24th ed, 2011), pp 191-192. Jack (ed), (24th ed, 2011), pp 196-197.

231

Jack (ed), (24th ed, 2011), pp 192-196.

232

Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 at 1156. If held in custody beyond the duration of the session, the offender can be discharged upon a writ of habeas corpus: Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 at 1156.

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1880, although it has contemplated using the power on several occasions since that date. 233 It is possible that the European Court of Human Rights might find that the power of the House of Commons to punish a person for contempt without a trial before a court of law might infringe the contemnor’s human rights. 234 Finally, the House of Commons can remove or exclude strangers from the galleries of the House (including the Press Gallery). 235 The House of Commons can also order a person to apologise for his or her conduct. While not a punishment in the strict sense of the word, failure to comply with the request would itself amount to a contempt, which could then be dealt with in one of the aforementioned ways. The House of Commons formerly imposed fines for contempt of parliament, but has not done so since 1666. 236 Although the power has never been distinctly renounced, it has been suggested that it has lapsed through lack of use and can no longer be exercised. 237 Over the years, several privileges committees have recommended that the power to fine be re-introduced. In 1999, a United Kingdom Joint Committee on Parliamentary Privilege, in a review of parliamentary privilege, recommended that the United Kingdom Parliament’s powers and privileges be codified in legislation 238 and made a number of significant recommendations for changes to the powers of the United Kingdom Parliament to punish contempts. 239 In particular, it recommended that Parliament’s power to fine should be re-stated and its power to imprison persons for contempt should be abolished, save that parliament should be able to temporarily detain persons who are misconducting themselves within a house or its precincts. 240 The Committee recommended that parliament’s penal powers over non-members 233

234

235

Jack (ed), (24th ed, 2011), p 192; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, [22]. It has been suggested that the House of Commons may no longer possess the power to imprison: R v Chaytor [2011] 1 AC 684 at 711. Legislative Assembly of Queensland, Members’ Ethics and Parliamentary Privileges Committee, First Report on the Powers, Rights and Immunities of the Legislative Assembly, its Committees and Members, Report 26 (1999), [4.1.2]. Jack (ed), (24th ed, 2011), pp 12-16.

236 237

CJ (1660-67), p 690. See, for example, R v Pitt and R v Mead (1762) 3 Burr 1335; 97 ER 861 per Lord Mansfield; United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, [14]; Parliament of the Commonwealth of Australia, Senate, Committee of Privileges, Penalties for Contempt Information Paper 95th report, September 2000, p 18; United Kingdom, Parliamentary Privilege, Cmd 8318 (2012) at [252]. But see [4.270] n 287 regarding the relatively recent imposition of a fine by the New Zealand Parliament.

238

United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendations 24 and 39. These recommendations are discussed in P Leopold, “Report of the Joint Committee on Parliamentary Privilege” [1999] Public Law 604. United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9 Recommendation 25. In similar vein, a Western Australia Legislative Council Select Committee report took the view that the sanction of imprisonment is neither necessary nor appropriate for Parliament to possess as a means of upholding its privileges, except for the purpose of maintaining order and preserving security, in which case it should have the power to temporarily detain people who are disrupting the proceedings of a House or a committee: Legislative Council, Parliament of Western Australia, Select Committee into the Appropriateness of Powers and Penalties for Breaches of Parliamentary Privilege and Contempts of Parliament (2009), [7.9]-[7.13], Recommendation 3. However, the recommendation was conditional on parliament being given a wide power to impose fines.

239 240

[4.220] 191

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be transferred to the High Court, although Parliament should retain a residual discretion, including power to admonish a non-member who accepts that he or she acted in contempt of parliament. 241 No immediate action was taken in response to the Joint Committee’s report. Subsequent reviews of parliamentary privilege by the government and by a Joint Committee on Parliamentary Privilege rejected the 1999 report and concluded that there is no strong case for legislating to comprehensively codify Parliamentary privilege, confirm Parliament’s penal powers or criminalise specific contempts. 242 Instead, it was recommended that the UK houses of parliament should reassert their historic and continuing penal jurisdiction, set out formally the kinds of behaviour likely to constitute contempt and establish procedures for exercising their contempt powers via resolutions and standing orders. 243

Contempt powers of the Commonwealth, State and Territory parliaments [4.230] A series of decisions in the 19th century confirmed that colonial parliaments did not, as a consequence of the application of common law in the colonies, inherit the powers and privileges of the United Kingdom parliament. 244 Rather, the powers inherent in colonial parliaments “were more limited than those exercised by the House of Commons”. 245 Colonial parliaments possess only protective or self-preserving powers, that is, such powers as are reasonably necessary to safeguard their existence and the proper exercise of their functions. 246 Although the concept of necessity is somewhat malleable, it has always been understood the concept did not require that colonial legislatures have punitive powers. 247 241 242

243

244

245 246

247

United Kingdom Parliament, Joint Committee on Parliamentary Privilege First Report HC 214 1998/9, Recommendation 26. United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013); Government Response to the Joint Committee on Parliamentary Privilege, Presented to Parliament by the Leader of the House of Commons by Command of Her Majesty, Cm 8771 (December 2013). United Kingdom Parliament, Joint Committee on Parliamentary Privilege, HL Paper 30/HC 100 (2013) at [76], [80]; Government Response to the Joint Committee on Parliamentary Privilege, Presented to Parliament by the Leader of the House of Commons by Command of Her Majesty, Cm 8771 (December 2013). Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225; Kilbourn v Thompson 103 US 168 (1880). The reason is that the powers of the House of Commons to punish contempts stemmed from its genesis as a court of record. In light of the fact that the “High Court of Parliament” is an institution peculiar to England, colonial parliaments, which were in no sense courts, did not inherit the same powers: E Campbell, “The Penal Jurisdiction of Australian Houses of Parliament” (1962-64) 4 Sydney Law Review 212 at 212-213. See also A Twomey, “Reconciling Parliament’s Contempt Powers with the Constitutional Separation of Powers’” (1997) 8 Public Law Review 88 at 89-90. S Walker, Contempt of Parliament and the Media (Adelaide Law Review Research Paper No 4, 1984), p 9. Kielley v Carson (1842) 4 Moo PC 63; 13 ER 225; Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727; Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293; Barton v Taylor (1886) 11 App Cas 197. See also Hartnett v Crick [1908] AC 470; Willis and Christie v Perry (1912) 13 CLR 592; Armstrong v Budd (1969) 71 SR (NSW) 386; Egan v Willis & Cahill (1996) 40 NSWLR 650; Canada (House of Commons) v Vaid [2005] 1 SCR 667. Fenton v Hampton (1858) 11 Moo PC 347; 14 ER 727; Doyle v Falconer (1866) LR 1 PC 328; 16 ER 293; Barton v Taylor (1886) 11 App Cas 197; Willis and Christie v Perry (1912) 13 CLR 592; Egan v Willis & Cahill (1996) 40 NSWLR 650 at 666; Egan v Willis (1998) 195 CLR 424. Whether a power is