Public documents and fair reports of proceedings of public concern

Open justice and open government depend on people being able to tell others what happened in court, in parliament and in other public forums, and to publish the documents those institutions produce. If every accurate account of a court hearing exposed the publisher to a defamation claim, little of the work of the courts would be reported. The Defamation Act 2005 therefore contains two closely related defences: the public documents defence in s 28 and the fair report defence in s 29.

This article explains what each defence covers, what “fair” means, how the defences are defeated, who can rely on them, and how they interact with suppression orders and contempt. The absolute privilege that protects the proceedings themselves is dealt with in a separate article; the defences discussed here protect those who report on them.

Publication of public documents

Section 28(1) provides a defence if the defendant proves that the matter was contained in a public document or a fair copy of a public document, or in a fair summary of, or a fair extract from, a public document.¹

The definition of public document in s 28(4) is wide. It includes any report or paper published by a parliamentary body and any record of its debates or proceedings published under its authority; any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings, with the court’s related records and its report of its reasons; any report or document that under the law of any country is authorised to be published or is required to be tabled before a parliamentary body; any document issued by a government, including a local government, or by an officer, employee or agency of a government, for the information of the public; any record or document open to inspection by the public that is kept by an Australian jurisdiction, a statutory authority, an Australian court or under Australian legislation; and documents treated as public documents in another Australian jurisdiction or specified in Schedule 2.¹

Published judgments and orders in civil proceedings are therefore public documents, as are court records open to public inspection, company and land title records, parliamentary committee reports, reports of royal commissions and government reports issued to inform the public. A person who republishes or fairly summarises such a document has a defence even if it contains serious and false allegations about someone.

Two limits deserve attention. First, paragraph (b) refers to judgments and orders in civil proceedings. A report of a criminal judgment or sentencing remarks is generally dealt with under the fair report defence in s 29, which covers proceedings in public of any court, although court records open to public inspection fall within paragraph (e) whatever the nature of the proceedings. Second, the limb for government documents requires that the document be issued “for the information of the public”. In Lower Murray Urban and Rural Water Corporation v Di Masi the Victorian Court of Appeal held that a document must be of a genuinely official nature to be “issued” by government, that the issuer’s purpose is relevant, and that a letter sent by a minister to former customers in that capacity, rather than to the public at large, was not issued for the information of the public.² The s 28 defence failed.

The requirement that a copy, summary or extract be “fair” imports the same standard of substantial accuracy as applies to the fair report defence discussed below. A selective extract that distorts the effect of the document is not protected.

Fair reports of proceedings of public concern

Section 29(1) provides a defence if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.³

Proceedings of public concern are defined in s 29(4) and include proceedings in public of a parliamentary body; of an international organisation, conference, court or tribunal; of a court or arbitral tribunal of any country; of an inquiry held under the law or under the authority of the government of any country; of a local government body; proceedings of a learned society, a sport or recreation association or a trade association, to the extent that they relate to a decision or adjudication made in Australia about a member or a person subject to the body’s control; proceedings of a public meeting of shareholders of a public company; proceedings of a public meeting held anywhere in Australia relating to a matter of public interest, including the candidature of a person for public office; proceedings of an ombudsman relating to a report; proceedings in public of a law reform body; proceedings treated as proceedings of public concern in another Australian jurisdiction; and proceedings specified in Schedule 3.³

The list covers far more than courts and parliaments. A report of a council meeting, a public inquiry, a professional disciplinary tribunal, a sporting tribunal’s finding against a player or a contested annual general meeting can attract the defence. The requirement that the proceedings be “in public” applies to most but not all categories; the disciplinary proceedings of learned societies and sporting and trade associations are covered whether or not the hearing was open, provided the report concerns a decision or adjudication about a member or a person subject to the body’s control.³

The earlier published report limb

Section 29(2) extends the defence to a person who republishes someone else’s report. It is a defence if the matter was contained in an earlier published report of proceedings of public concern, the defendant’s publication was a fair copy, summary or extract of that earlier report, and the defendant knew nothing that would reasonably have made them aware that the earlier report was not fair.³ This protects, for example, a person who shares a newspaper’s court report on social media or summarises it in a newsletter, without requiring that person to have attended the hearing.

What makes a report fair

The principles on fairness were developed under earlier provisions and the common law and continue to apply to s 29.

A report need not be a complete account of the proceedings, nor accurate in every respect, but it must be substantially accurate. Whether it is substantially accurate is a question of fact.⁴ Kirby J in Chakravarti v Advertiser Newspapers Ltd explained that a report will ordinarily be abridged or condensed, but must not be biased or garbled; a summary is acceptable as long as it retains substantial accuracy in all material respects, and trivial inaccuracies will not take a report outside the protection.⁴

The test is applied to the defamatory meaning. In Chakravarti, Brennan CJ and McHugh J held that where a defendant pleads fair report it is necessary first to determine what meanings the publication conveys, because until that is done it cannot be known whether the report is an answer to the plaintiff’s claim; a report that contains a substantial misrepresentation of a material fact prejudicial to the plaintiff’s reputation must be regarded as unfair.⁴ A report can be inaccurate about something the plaintiff does not complain of without losing the defence, but an inaccuracy that produces or inflates the defamatory meaning is fatal. In Chakravarti itself a report of evidence before a royal commission attributed to four executives evidence that related only to two of them, and the defence failed.⁴

The New South Wales Court of Appeal applied these principles to s 29 in Feldman v Polaris Media Pty Ltd. White JA rejected the trial judge’s view that a report must give a complete account of the issue reported, holding that a report need not be a complete report of the proceedings but must be substantially accurate.⁵ The defence nevertheless failed. Although the article was a substantially accurate report of the evidence the plaintiff had given to a royal commission, the defamatory meaning the article conveyed was not supported by that evidence, and consistently with Chakravarti the report had to be fair in respect of the defamatory meaning found.⁵

The publication must also read as a report. In Rogers v Nationwide News Pty Ltd the High Court held that although attribution does not require direct quotation or acknowledgment, it must appear that the published matter bears the character of a report of the proceedings in question; it is not enough that the proceedings are a source of information or the subject of an expression of opinion.⁶ In that case a journalist used a judgment in a tax case as the source for an article about an eye surgeon, but added her own assertion that he had operated negligently, which the judge had not said. The defamatory sting arose from what the journalist added, not from any summary of the judgment, and the defence failed.⁶ Gleeson CJ and Gummow J explained the policy: the protection exists so that a reader of the report will see a substantially correct record of what was said and done in court.⁶

Several practical consequences follow. A report that sets out one side’s allegations but omits the denial or the outcome may be unfair, because the impression created differs from what a person present would have received. Headlines, captions and social media teasers are assessed as part of the publication; a headline that overstates the finding can make an otherwise accurate report unfair. Comment woven into the report is not protected by s 29 and can be defended, if at all, only as honest opinion. And an account of allegations in a document filed but not yet read or relied on in open court may need to be defended under s 28 as a report of a court record rather than under s 29.

How the defences are defeated

Both defences are 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.⁷ The onus is on the plaintiff and the test concerns the purpose of the publication. The language differs from the common law concept of malice, and a plaintiff cannot defeat the defence merely by showing ill will. What must be shown is that the publication was not an honest attempt to inform the public, for instance where a litigant circulates pleadings to the opposing party’s clients with the sole purpose of damaging them, or where a report is selectively compiled and sent to a target audience as an instrument of a private campaign.

Because the honesty qualification is the only way to defeat the defences, litigation usually turns instead on whether the report was fair and whether the document or proceedings fall within the statutory definitions.

Who can rely on the defences

Nothing in ss 28 or 29 confines them to journalists or media organisations. The defences are available to any defendant: a blogger covering a trial, a member of the public posting about a council meeting, a litigant publishing a judgment in their favour, or a person sharing a published court report.³ The same standards apply to everyone, and a casual publisher who, in the same post, paraphrases loosely, omits the outcome or editorialises is as exposed as a newspaper.

Suppression orders and contempt

The defamation defences answer a defamation claim and nothing else. They do not permit publication of material that a court has ordered not to be published, and they do not excuse a contempt of court.

In New South Wales, the suppression orders legislation makes it an offence, punishable by imprisonment for up to twelve months for an individual, to engage in conduct that contravenes a suppression or non publication order while reckless as to whether it does so, and preserves the court’s power to punish the same conduct as contempt.⁸ Other jurisdictions have their own statutory and inherent powers to restrict publication, and statutes in every jurisdiction prohibit identification of particular participants, such as complainants in sexual offence proceedings and children. A report that is fair for the purposes of s 29 can still result in prosecution if it breaches one of those restrictions.

Contempt is a separate concern. Publication that creates a real risk of prejudice to a pending trial, particularly a jury trial, may be a contempt even if accurate. Anyone reporting on a current criminal matter therefore needs to consider both the defamation position and the sub judice rule.

Differences between jurisdictions

The public documents and fair report defences are in ss 28 and 29 in New South Wales, Victoria, Queensland, Tasmania and Western Australia, ss 26 and 27 of the South Australian Act, ss 138 and 139 of the Civil Law (Wrongs) Act 2002 in the Australian Capital Territory and ss 25 and 26 of the Defamation Act 2006 in the Northern Territory.⁹ The core definitions and the honesty qualification are the same everywhere, and these sections were not changed by the 2021 or Stage 2 reforms, so Western Australia is in the same position as the reformed jurisdictions on these defences.

The schedules differ. In New South Wales, Schedule 2 adds further public documents and Schedule 3 adds further proceedings of public concern, principally those of state bodies.¹⁰ Queensland’s Act has no Schedules 2 or 3; schedule numbers 1 to 4 are not used and the only schedule is the dictionary.¹¹ Because ss 28(4)(f) and 29(4)(o) pick up documents and proceedings treated as public in another Australian jurisdiction, a Queensland publisher reporting on a New South Wales body listed in that state’s schedules can still rely on the defence.¹

Getting advice

Whether a publication is a fair report, whether a document is a public document, and whether anything else restricts publication depend on the detail of what was published and the proceedings it describes. A publisher planning to report on litigation or a public inquiry, and a person who considers that a report has misstated what occurred or was published for an improper purpose, will each benefit from advice on how ss 28 and 29 apply.