The first test for s29A of the Defamation Act 2005 (NSW)
18th Oct 2023
On 16 October 2023, Lee J handed down his reasons for judgment in the case of Heston Russell v Australian Broadcasting Corporation (No 3)  FCA 1223 (Russell).
The ABC – and its journalists Mark Willacy and Joshua Robertson, who were the two other respondents – only ran one defence to trial: that they were not liable for defamation because the articles they published concerned an issue of public interest.
Justice Lee rejected that defence. Mr Russell was awarded $390,000 of compensatory damages (no aggravated damages) and interest and costs.
As I noted in my Precedent article, ‘A saviour for the media? The genesis of the public interest defence and its possible future treatment’, in August 2023, we had not yet had a final-hearing determination of the new, and mostly uniform, s29A public interest defence in Australia.
Russell is the first.
This Opinion focuses on the key takeaways specifically relating to the new s29A defence which are found in Sections F and G of Lee J’s reasons.
I was most interested to discover whether his Honour would continue the treatment of the defence seen in the UK (which has had for a while an almost identical defence) and in two Australian decisions, which discussed the defence but were not final hearings: Murdoch v Private Media Pty Ltd  FCA 1275 (Murdoch); and Barilaro v Google LLC  FCA 650.
Although he cited them appropriately throughout, Lee J cautioned against relying too heavily on the UK authorities, given there are some differences in the wording of the two defences and there is a need to focus on each one’s domestic context [see eg –).
Justice Lee agreed with Wigney J in Murdoch that the references in s29A(1) to ‘defamatory matter’ and ‘matter’ refer to the whole publication that gives rise to the cause of action (so the whole article, tv program, etc), as was argued by the respondents, rather than the defamatory imputations or sting conveyed by the matter complained of. This is a big ‘win’ for defendants, as it is likely to be far harder to establish that specific defamatory imputations are in the public interest as opposed to a whole publication, which naturally covers broader ground (see – and my Precedent article for further discussion).
In sF4 his Honour sets out a ‘principled approach’ to the defence and, in following prior decisions here and in the UK, finds that:
- The first element of the test, whether the matter concerns an issue of public interest, is an objective question and the categories of what is in the public interest are not closed.
- The second question, whether the publisher believed the publication of the matter was in the public interest, is a subjective question and means the publisher must establish at the trial that at the time of publication they had that subjective belief.
- Where there is more than one publisher, they all need to establish their own subjective belief (see ). They do not have to establish a belief in the truth of what was published – though this might affect the third question.
- The third question, whether the publisher’s belief that the publication of the matter was in the public interest was reasonable, is an objective question and where the battle will often be. After tracking through the history of ‘reasonableness’, its meaning, and the influences on the term from other defences/authorities, his Honour, in seeking to give reasonableness some substance, simply details the non-exhaustive factors found in s29A(3) and then says ‘to enumerate a list of matters always or even sometimes relevant to s29A’ would be ‘unhelpful’ (see ).
In sG, his Honour applied the defence to the facts he had found. Here are some highlights.
Mr Russell had already conceded that the publication of the matters complained of was in the public interest, so the respondents ‘won’ on the first question.
Mr Russell argued that none of the respondents had the requisite subjective belief. In addressing that, Lee J made clear that the corporate respondent’s state of mind must be determined by a focus on its servants or agents, those responsible for the matter being published, and found the following people to be the relevant persons for that enquiry: Mr Willacy and Mr Robertson; Investigations Editor Ms Jo Puccini; and ‘to a lesser extent’ Digital Editor Mr Dan Harrison (see –). There was some argument over who else should be attributed as the corporation’s state of mind – this might be a live question in future matters.
Justice Lee found that all the respondents did have the requisite subjective belief to meet the test in the second question.
So, the respondents won on the first and second questions, but failed on the third, for the following reasons.
When it came to the November Article, Lee J found that it was not objectively reasonable for Mr Willacy or Mr Robertson to believe that publication was in the public interest. With respect to Mr Willacy:
- he did not take a ‘wide range of steps to be careful to distinguish between what was known and what was not known (s29A(3)(b)), interrogate and explain to readers the integrity of his sources (s29A(3)(e)), accurately convey (or attempt to ascertain) Mr Russell’s side of the story (s29A(3)(g)) and justify the concealment of Josh’s identity (s29A(3)(f)) … he simply did not do enough’ (). Lee J found that if Mr Willacy had researched more widely and consulted with people with firsthand experience of what took place in Afghanistan then Mr Willacy would have been told of the implausibility of what he was writing (at ).
- His reading of the FOI response, which lead him to believe there was an investigation into November Platoon and Mr Russell, was not accepted by Lee J as a reasonable or safe conclusion (see eg ).
- He did not ‘distinguish between suspicions, allegations and proven facts (s29A(3)(b)’ (at ).
- The assessment of the objective reasonableness of the subjective belief ‘must be assessed against the seriousness of the imputations carried by the November Article (see 29A(3)(a))’ (at ). The imputations were serious and necessitated more care in publishing.
- The urgency to publish was not an urgency covered by s29A(3)(d) but rather Mr Willacy rushed to publish to hit back at critics of his earlier reporting (at ).
With respect to Mr Robertson, the position was ‘more nuanced’ (at ). Mr Robertson’s name was on the November Article as author but it was an article that had been substantially drafted by Mr Willacy and was a follow on from Mr Willacy’s October Article that aired much the same allegations.
However, while it was reasonable for Mr Robertson to rely on Mr Willacy’s work, that did not ‘absolve Mr Robertson of responsibility for its drafting and publication’ (at ). In that regard:
- Mr Robertson did not warn Mr Russell ‘of his intention to republish the substance of the October Article’ and ‘the precise allegations made by the November Article were not fairly put to’ Mr Russell ().
- Mr Robertson’s reasons for not fully engaging with Mr Russell were not accepted and the judge found that he should have done more given he had an ‘independent responsibility to satisfy himself he was publishing something that was accurate’ (at ).
- He also conveyed serious imputations and failed to distinguish between suspicions, allegations and proven facts (s29A(3)(a) and (b)).
- The changes Mr Robertson made were based on an unreasonable conclusion from the FOI response and that provided an ‘infirm basis’ for him to make the drafting changes he made (at ).
Justice Lee went on to make further findings as to Ms Puccini and Mr Harrison’s actions in determining the unreasonableness of the ABC’s subjective belief (see –). In short, his Honour found Ms Puccini’s motives in publishing were a ‘desire to win a skirmish in what she considered was a broader culture war as to ABC Investigations’ war crime reporting and, more specifically, to prove Mr Russell and his supporters wrong.’ (see –).
In concluding, his Honour said:
‘in fighting back against critics and seeking to justify its earlier story, those responsible within ABC Investigations did not do all they should have done prior to publishing the November Article conveying, as it did, such serious allegations. The ABC did not have an objectively reasonable attributed belief that publication of the November Article was in the public interest and cannot make out the s29A defence’ (at ).
In summary then, we know what we already knew about this defence – there is no closed definition of what is in the ‘public interest’; the subjective belief of the publisher has to be established at the time of publication; and the real battle ground will be whether the publisher’s belief that the publication of the matter was in the public interest was objectively reasonable. In determining that last question, Lee J made extensive use of the non-exhaustive factors in s29A(3) as to whether the belief was reasonable, and they are clearly relevant and instructive, however, his Honour did not provide much guidance on the metes and bounds of ‘reasonableness’ viz a viz s29A, which may have been a missed opportunity given the defence’s nascency.
The ALA thanks David J Helvadjian for this contribution.
David J Helvadjian is a barrister at 153 Phillip Barristers. Since being called to the bar, his practice has encompassed a wide spectrum of areas, including common law (including defamation and media law), public law, and commercial law. EMAIL firstname.lastname@example.org.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).