Recommendation 11–6 The Act should provide for a defence of publication of public documents.
11.89 This defence provides protection from liability for the publication of public documents which are relevant to an open and transparent political and legal system. Access to public documents supports the principle of open justice and accountability in our public institutions. This recommendation is consistent with the ALRC’s Terms of Reference for this Inquiry which require consideration of the necessity of balancing privacy with fundamental values, including freedom of expression and open justice.
11.90 The ALRC recommends that this defence should be co-extensive with the defence of publication of public documents in s 28 of the Uniform Defamation Law (UDL) which provides a comprehensive list of the types of documents protected from defamation actions. The use of this list will dispel any concerns about the scope of the defence by clearly defining the range of documents covered by the defence. Section 28 defines ‘public document’ as
(a) 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, or
(b) any judgment, order or other determination of a court or arbitral tribunal of any country in civil proceedings and including:
(i) any record of the court or tribunal relating to the judgment, order or determination or to its enforcement or satisfaction, and
(ii) any report of the court or tribunal about its judgment, order or determination and the reasons for its judgment, order or determination, or
(c) any report or other document that under the law of any country:
(i) is authorised to be published, or
(ii) is required to be presented or submitted to, tabled in, or laid before, a parliamentary body, or
(d) any document issued by the government (including a local government) of a country, or by an officer, employee or agency of the government, for the information of the public, or
(e) any record or other document open to inspection by the public that is kept:
(i) by an Australian jurisdiction, or
(ii) by a statutory authority of an Australian jurisdiction, or
(iii) by an Australian court, or
(iv) under legislation of an Australian jurisdiction, or
(f) any other document issued, kept or published by a person, body or organisation of another Australian jurisdiction that is treated in that jurisdiction as a public document under a provision of a law of the jurisdiction corresponding to this section, or
(g) any document of a kind specified in Schedule 2.
11.91 The NSWLRC argued that the consideration of public interest in its public documents and fair report of proceedings of public concern. However, a complete defence would provide greater certainty.
11.92 A number of stakeholders expressed their support for the availability of this defence, many of whom highlighted the need to promote a transparent and open government and judicial system.
The application of this provision in the new privacy tort was supported by the Office of the Victorian Privacy Commissioner, Submission 108.
See, for example, Defamation Act 2005 (NSW) 2005 s 28(4).
NSW Law Reform Commission, Invasion of Privacy, Report 120 (2009) [6.8].
T Butler, Submission 114; Office of the Victorian Privacy Commissioner, Submission 108; ASTRA, Submission 99; Australian Sex Party, Submission 92; Guardian News and Media Limited and Guardian Australia, Submission 80; SBS, Submission 59; D Butler, Submission 10.