Defamation in politics – Deeming v Pesutto [2024] FCA 1430

In December 2023, Moira Deeming, a member of the Victorian Legislative Council, initiated defamation proceedings against the then Victorian Opposition Leader, John Pesutto in the Federal Court of Australia.

The claim arose after Mr Pesutto made a series of public statements which implied that Ms Deeming had associations with neo-Nazi groups and therefore needed to be expelled from the Victorian parliamentary liberal party.

Ms Deeming was successful in her action against Mr Pesutto, however, Mr Pesutto asserted a number of defences under the Defamation Act 2005 (VIC) (the Act) which we consider in further detail below.

This case provides a case study on the potential application of defences available under the Act, which reflects the current model Australian defamation law.

While the defences we consider below are pursuant to the Act, we note that Western Australia has its own defamation act, and while the Western Australian government have notionally agreed to eventually implement the model Australian law, no action has yet been taken to amend the WA legislation.

The publication

In this case, the Court considered five separate publications made by Mr Pesutto, which included:

1. a media release which implied that Ms Deeming had associations with neo-Nazis and was therefore unfit to be a member of the parliamentary liberal party;
2. separate radio and ABC television interviews where Mr Pesutto repeated assertions that Ms Deeming was associating with neo-Nazis;
3. a press conference on the steps of Parllament where Mr Pesutto suggested that Ms Deeming had associated with neo-Nazis; and
4. an expulsion motion and dossier presented to the Liberal party room that suggested Ms Deeming’s conduct warranted expulsion from the Victorian parliamentary liberal party. In support of the expulsion motion, Mr Pesutto stated “this is not an issue about free speech but a member of the parliamentary party associating with people whose views are abhorrent to my values, the values of the Liberal Party and the wider community”.

In the action commenced by Ms Deeming, it was alleged that Mr Pesutto’s statements conveyed the following defamatory imputations (among others) that she:

• was a Nazi sympathiser;
• knowingly consorted with and supported neo-Nazis;
• is a person of extreme or bigoted views; and
• is unfit to be a Member of Parliament.

Defences raised by Mr Pesutto

Public Interest

Section 29A of the Act provides a statutory defence of a publication made in the public interest. In order to assert a public interest defence, it must be proved that the:

1. matter concerns an issue of public interest;
2. defendant believed that the publication of the matter was in the public interest; and
3. defendant’s belief that the publication of the matter which is in the public interest was reasonable.

While Ms Deeming conceded that each of the five impugned publications were a matter of public interest (and the Court was also satisfied that Mr Pesutto subjectively, in fact, believed that the publication of each of the five matters was in the public interest), the Court was not satisfied Mr Pesutto had satisfied the ”‘reasonableness test” in relation to each of the impugned publications and as such this defence failed.

The Court found that Mr Pesutto had repeatedly said that he had never believed that Mrs Deeming was a Nazi, a Nazi sympathiser, a neo-Nazi or that she associated with such people.

His Honour said that in those circumstances, there was always a need for Mr Pesutto to take care not to convey by the use of loose or careless language, the impression that she was a Nazi, a Nazi sympathiser, a neo-Nazi or that she associated with such people, whether in considered documents like the media release or in the heat of the moment of the media interviews and that Mr Pesutto had not taken such care.

It was also found that Mr Pesutto paid no heed to, nor did he mention in any of the impugned publications, the fact that Ms Deeming vehemently denied what was put against her. Mr Pesutto also failed to mention or to disclose a tweet by Ms Deeming, where she referred to “the horrible Nazi salute”.

The court explained that the failure to mention any of these matters which relate to the other person’s side of the story is particularly important. An example was given where this occurred in a radio interview where the host specifically asked Mr Pesutto “did she [Ms Deeming] object to what you told her [about bringing the expulsion motion]?”, and he replied that he would not “go into the details of the discussion”.

His Honour viewed this as a disingenuous response, and a further circumstance that weighed against Mr Pesutto’s belief that the publications were in the public interest being reasonable.

Honest Opinion

Section 31 of the Act provides a defence to the publication of defamatory matter if the defendant proves that the:

1. matter was an expression of opinion of the defendant rather than a statement of fact;
2. opinion related to a matter of public interest; and
3. opinion is based on proper material.

While Ms Deeming again conceded that each of the impugned publications related to a matter of public interest, the Court found that Mr Pesutto’s comments were not based on proper material.

The Court explained that Mr Pesutto did not take enough care to ensure that the factual matters upon which he sought to base his publication had proper or sufficient foundation.

The Court also found that there was insufficient proper material to base the assertions on, as the presence of neo-Nazis at a rally wasn’t sufficient to ground an imputation of association.

The Court noted, (as White J explained in Dutton v Bazzi [2021] FCA 1474 at [113]):

“s 31 requires that the proper material on which the opinion is based be stated in or, referred to, in the impugned matter or be otherwise notorious”

Lange Qualified Privilege

The defence of Lange¹ qualified privilege, extends common law qualified privilege to cover publications made in the course of discussing government and political matters, provided the publication was reasonable in the circumstances.

Mr Pesutto contended that the impugned publications concerned the discussion of government and political matters, and their publication was reasonable in the circumstances, and so was therefore protected by the Lange form of common law qualified privilege.

His Honour found that in light of defence counsel’s concession that the Lange qualified privilege defence would not yield a more favourable result for Mr Pesutto in a trial on s 29A of the Act on the current state of the authorities, it was not necessary to deal with it, other than to say that it fails in respect of each impugned publication.

Section 26 of the Act asserts that it is a defence to the publication of defamatory matter if the defendant proves that:

1. the matter carried one or more imputations that are substantially true (contextual imputations); and
2. any defamatory imputations of which the plaintiff complains that are not contextual imputations and are also carried by the matter do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

As a result, his Honour accepted that submission, so and found that it was unnecessary to consider this defence.

Mr Pesutto contended that if any of the imputations pleaded by Ms Deeming are found to be carried by the impugned publications, they attract the defence of contextual truth in s 26 of the Act by reason of the substantial truth of the contextual imputations identified in Mr Pesutto’s defence.

However, Mr Pesutto’s counsel conceded that the contextual truth defence was put as “a fall-back defence” that only needed to be considered if his submission that each of the publications will have been reasonably understood as an expression of his opinion were rejected.

As a result, his Honour accepted that submission, so and found that it was unnecessary to consider this defence.

Disclaimer

The information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.

Footnotes