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  • One of the major reforms to the Defamation Act 2005 (NSW) was the introduction of a new public interest defence in s 29A.
  • The recent Federal Court decision, Heston Russell v Australian Broadcasting Corporation (No 3), was the first adjudication arising from a final hearing of this new defence.
  • One area of concern relating to application of the defence is that the focus on a defendant’s conduct becomes the only consideration when courts consider the reasonableness of a subjective belief.

As discussed in my previous article (Law Society Journal, Issue 84, December 2021, p88-89), on 1 July 2021 the Defamation Amendment Act 2020 (NSW) (‘Amendment Act’) brought into force several changes to the Defamation Act 2005 (NSW). These changes were also enacted in almost all the other States and Territories.

One major reform was the new Public Interest defence in s 29A. Sub section (1) states, ‘It is a defence to the publication of defamatory matter if the defendant proves that:

(a)          the matter concerns an issue of public interest, and

(b)          the defendant reasonably believed that the publication of the matter was in the public interest.’

The Second Reading Speech and Explanatory Notes to the Amendment Act put a position that the defence was enacted to ensure defamation law does not ‘place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance’ (Notes, p 10).

This defence is, and was intended to be, very similar to section 4 of the Defamation Act 2013 (UK) and there have been many decisions in England applying this defence (see e.g. at first instance Lachaux v Independent Print Ltd [2021] EWHC 1797 and Economou v de Freitas [2016] EWHC 1853; and in the Supreme Court of the United Kingdom Serafin v Malkiewicz [2020] 1 WLR 2455; [2020] UKSC 23).

However, up until 16 October 2023, when Lee J handed down his reasons for judgment in Heston Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (‘Russell), there had been no adjudication arising from a final hearing of the new s 29A defence. This article discusses the decision and the implications regarding s 29A.

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