Consideration
113 The word "corrupt" and its cognates are capable of a variety of meanings when used in relation to those in public office. Account must be taken of this in considering what was conveyed to the ordinary reasonable reader. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138, Gleeson CJ gave the following examples of the meaning of the word "corrupt" which, depending on context, may be applicable in a given case:
[I]t can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position.
Gleeson CJ went on to note that the range of possible meanings of the word "corrupt" when used in connection with public officials had been enlarged by the Independent Commission Against Corruption Act 1988 (NSW) (the ICAC Act). It was not suggested in the present case that regard should be had to the statutory definitions or to the understanding of ordinary reasonable readers of corruption as defined in the ICAC Act.
114 The examples given by Gleeson CJ are helpful (but not definitive) in considering whether the SMH articles conveyed an imputation of corrupt conduct to the ordinary reasonable reader. The first two of the alternative meanings can be put to one side as being inapplicable in the context of pleaded imputation (e). It is the third alternative which requires consideration.
115 The ordinary reasonable reader would not regard every private benefit obtained by politicians and ministers from their office as being improper. Some such benefits are provided for expressly in the established entitlements; some can arise intrinsically from the office; and others are an accepted incident of the office. Ordinary reasonable readers are likely to think that politicians and ministers may obtain a range of private benefits from their office, which are unremarkable and do not involve any suggestion of corruption. On the other hand, ordinary reasonable readers are likely to regard some forms of attempts to obtain personal benefits from the exploitation of a politician's office, or the influence it affords, as a form of corruption. In particular, ordinary reasonable readers are likely to regard a Minister, especially a Minister holding the high office of Treasurer, making access to him or her conditional on a donation to the Minister's political party as both improper and a form of corrupt conduct. Between these extremes there is no doubt a range of conduct, some of which ordinary reasonable readers would regard as corrupt and some not.
116 The ordinary reasonable reader may be taken to have some understanding of political fundraising and the activities associated with it. They would understand that political parties do raise funds with which to conduct election campaigns and that the major parties have permanent directorates or secretariats which must be financed. They would understand that political parties adopt a variety of fundraising stratagems, but rely very much on donations from party members and supporters as well as others.
117 The ordinary reasonable reader would, in my opinion, be aware that it is common for parliamentarians and candidates for election to hold fundraising events at which the attraction for attendance is that a prominent Parliamentarian, a Minister, or even a Premier or Prime Minister will be guest speaker. It is the prospect of hearing this person speak, or meeting them afterwards as they mingle, as well perhaps as the attendee's own political allegiance, which is "exploited" in the promotion of these events. Mr Hockey annexed to his affidavit an apparent example of this kind of fundraising in the form of an article published in the SMH and The Age on 6 May 2014. The headline to the article in the SMH was "Lunch with Shorten for $3,300: Labor offers business leaders exclusive access" and the headline in The Age "Meet Bill Shorten for just $3,300". The opening paragraphs in this article were:
Labor is offering business leaders exclusive access to Opposition Leader Bill Shorten before the federal budget, but it comes at a high price - $3,300 for a boardroom lunch.
...
An email from the Director of the Federal Labor Business Forum, Kate Dykes, urges would-be attendees to "avoid disappointment" as tickets to the Shorten event are strictly limited.
The high-priced fund-raiser is due to be held on Thursday at an undisclosed location in the Sydney CBD and is billed as a boardroom lunch with the Opposition Leader. The $3,300 price is for non-members of the forum; for members the event will cost $2,500.
118 Ordinary reasonable readers do not, in my opinion, regard such practices as corrupt, even though they understand that the guest speaker is obtaining a benefit for the candidate or their party from the "allure" of the office they hold. They are an accepted form of political fundraising.
119 I also consider that the ordinary reasonable readers would have some understanding of the requirement for public disclosure of public donations. They would also understand the rationale for the requirement of disclosure.
120 Against this background, I consider that some readers may reasonably have understood some of the initial passages in the SMH printed articles to be stating that Mr Hockey was making improper use of his important office as Treasurer by agreeing to see persons if they made a contribution to his own campaign funds or to the Liberal Party. They are likely to have understood from these particular paragraphs that the SMH was indicating that Mr Hockey was engaged in a form of corrupt conduct. The headline "Treasurer for Sale", the overline referring to a "secretive fundraising body" and the first, second and third paragraphs of the Nicholls article in particular may have created an impression to that effect in the mind of some reasonable readers. The first and third paragraphs in the Nicholls article could, considered by themselves, be understood on one view as suggesting that it was Mr Hockey personally who was offering access to himself in exchange for payment or that Mr Hockey imposed, as a condition of his agreeing to see persons in his capacity as Treasurer, that they make donations to the Liberal Party. Alternatively, such readers could have understood the SMH to be saying that Mr Hockey was seeking to profit from his office by agreeing to see those who had made significant contributions towards his re-election. It is also pertinent that the second paragraph links Liberal Party fundraising bodies to possible corruption by its reference to the ICAC probe of the Millennium Forum, another Liberal Party fundraising body.
121 I also consider that para 4 of the Nicholls article, whether by itself or in conjunction with the paragraphs to which I have just referred, may have been understood by some ordinary reasonable readers as indicating that members of the NSF were entitled to one-on-one meetings with Mr Hockey. That too may have suggested to them that the articles were imputing corrupt conduct to Mr Hockey in his provision of privileged access.
122 Accordingly, I consider that some ordinary reasonable readers may have understood that the initial paragraphs in the SMH printed articles conveyed pleaded imputation (e). This is particularly so in respect of those who also saw the poster. There is therefore a reasonable basis for the submissions made on Mr Hockey's behalf in that respect as, apart from its inclusion of the word "corruptly", it is a close paraphrase of the first part of para (1) of the Nicholls article.
123 However, the articles have to be read as a whole, taking account of the influential effect of the headlines, the opening paragraphs just mentioned, the other prominent aspects and, for those who saw it, the poster. In my opinion, when ordinary reasonable readers read the articles as a whole, they would not have understood that they were being informed that Mr Hockey was engaged in a form of corrupt conduct of the kind just described. They would instead have understood that they were being told that he had adopted, or was a willing participant in, a form of political fund-raising in which the prospect of access to him was held out as the attraction to donors and that this practice allowed persons in business, those who advocated on their behalf, and those who could afford to pay a substantial sum as a political donation, access to him in that form which was unlikely to have been available to them otherwise. They would have understood that they were being informed that this was secretive in that relatively little information was available as to those who were obtaining access by this means, what occurred when they did meet Mr Hockey, and the benefit they derived from their payments. Ordinary reasonable readers would also have understood that they were being informed about "access" to Mr Hockey being linked to political donations in a way which the SMH considered constituted a circumvention of the disclosure requirements in the electoral laws. They are likely to have understood that the making of substantial donations to political parties without the disclosure which the law requires could allow a circumstance in which influence and possibly corruption might occur.
124 I also consider that ordinary reasonable readers would have understood that they were being informed that Mr Hockey was engaging in a practice which the SMH regarded as undesirable and inappropriate.
125 However, ordinary reasonable readers would, in my opinion, have understood the distinction between conduct which may be undesirable or inappropriate, on the one hand, and conduct which is corrupt, on the other, and would not have regarded the articles as conveying that Mr Hockey's conduct was corrupt, let alone that he was "peddling influence". Instead, they would have understood the articles to be conveying that Mr Hockey was engaged in a non-corrupt form of fundraising which used the allure of his office.
126 A number of aspects of the articles indicate that this is an appropriate understanding of what they conveyed.
127 First, the ordinary reasonable reader would have quickly understood that the articles were not suggesting that Mr Hockey personally was receiving payments in return for access to him.
128 Secondly, readers would also have understood readily that the payments to which the articles referred were not payments which Mr Hockey imposed, or expected, as a condition of access to him, and that Mr Hockey did not provide access in exchange for payments in a corrupt sense.
129 Thirdly, readers would have appreciated that the payments being made were in effect donations to the Liberal Party.
130 Fourthly, ordinary reasonable readers would have considered that the form of fundraising involved was not dissimilar to forms of fundraising commonly adopted by political parties and candidates. Mr Hockey's own case, as opened, was that the NSF was no different from many similar organisations operated on both sides of politics.
131 I referred earlier to the importance of the main headline and the overline. Regard must also be had to the three dot pointed sub-headlines, each of which was also prominent and made it plain that is was not Mr Hockey who was making a charge for access to him. The three dot-pointed sub-headlines refer expressly to the NSF and its activities. The extract of the SMH editorial on page one is also likely to have confirmed for ordinary reasonable readers that it was not Mr Hockey personally who was charging a fee for access to him.
132 Readers' understandings would have been confirmed by the balance of the Nicholls article which, in the main, concerns the NSF, its membership, the manner of the access to Mr Hockey provided by the NSF, the involvement of known members of the NSF, and the similarity of the NSF to other Liberal Party fundraising vehicles.
133 The articles make it plain that the payments which they discussed were not payments to Mr Hockey personally, or for his personal use, but payments which were in effect donations to the Liberal Party as an aspect of fundraising activities. In addition to the overline and the three dot-pointed sub-headlines, this character of the payments is also evident in the references to "donations to the Liberal Party via a secretive fund-raising body" (para (1)); "donors are members of the [NSF], a campaign fundraising body run by Mr Hockey's North Sydney Federal Electoral Conference" (para (4)); "the North Sydney FEC officials who run the forum - which is an incorporated entity of the Liberal Party" (para (5)); Mr Orrell's statement that "money raised by the [NSF] was often distributed to Liberal Party marginal seats" (para (30)); "the structure of the [NSF] is based on that of similar vehicles established by other Liberal MPs" (para (35)); and a spokesperson's statement that "donations [are] disclosed to the AEC in accordance with the law … and funds are used for the work of the party" (para (40)).
134 In my opinion, Mr Uhlmann, the Print Editor of The Canberra Times, described accurately what was conveyed when he said of the articles: "[they] gave you an insight into how some of these things [fundraising] are done".
135 The Kenny article would have confirmed the understanding of the ordinary reasonable reader. It commences with the express statement "Nobody is suggesting Joe Hockey is corrupt" and then makes the distinction between conduct of that kind and conduct which corrupts "Australia's democratic integrity". The ordinary reasonable reader would have well understood the distinction which was being made. The Kenny article does, as Mr Hockey's counsel emphasised, appear under the headline "The price tag on Joe Hockey" but the ordinary reasonable reader would have understood that as a reference to the amount to be paid to the NSF in the expectation of access to Mr Hockey. Any impression that the "price tag" was a reference to an amount by which Mr Hockey's judgement or discretion could be bought or that it was an indication of corruption would have been dispelled by the overall content of the articles, by the overline "Campaign funds Fair go questioned", and by the first paragraph in the Kenny article.
136 As already noted, counsel for Mr Hockey submitted that the opening statement in the Kenny article did not have the effect of removing the imputation that Mr Hockey was acting corruptly. The respondents submitted that this submission overlooked the distinction to be drawn in this context between a denial of a defamatory allegation and an express disclaimer of such an allegation. However, their submission did not elaborate the nature of the distinction, nor did they refer to any authority bearing upon its relevance.
137 As already indicated, the SMH articles must be read as a whole. The opening paragraph to the Kenny article, whether it be a disclaimer or a denial, forms part of that whole. As such, it is not decisive, in the circumstances of this case, of whether pleaded imputation (e) was conveyed to ordinary reasonable readers. The relevant principles were stated by Hunt J in Farquhar v Bottom (1980) 2 NSWLR 380 at 387-8:
(33) I was urged on behalf of the defendants to construe the matter complained of as a whole, and to conclude that the bane created by the author's assertion had been outweighed by the antidote of the defendants' denial: … The mere presence of a denial of a defamatory charge does not make the matter complained of as a whole incapable, nevertheless, of conveying the defamatory imputation so denied for, in such a situation, the reader is presented with two conflicting assertions, with the choice in accepting either …
(34) There are cases, of course, in which the refutation is of such a nature that, taken as a whole, the matter complained is incapable of conveying the imputation refuted, for example, where the imputation arises by way of inference only, and the matter complained of itself contains an express disclaimer of any intention to convey such an imputation … or where the refutation consists of a statement of fact destructive of the entire basis upon which the imputation relies …
(35) But such cases are comparatively rare …
138 Angas Parsons J said, succinctly, in Savige v News Ltd [1932] SASR 240 at 245:
A contradiction of the assertion published, whether made by the newspaper on its own account, or on the authority of anyone else, does not limit the reader to the refutation and oblige him to disregard the assertion if, interpreting the document as a whole, the defamatory meaning charged could be made out as a reasonable, natural or necessary inference from the words used.
139 The opening paragraph to the Kenny article has to be assessed by reference to these principles. It is but one part of the material to be considered when assessing whether the SMH articles conveyed imputation (e). In particular, the opening sentence to the Kenny article may not be sufficient to remove the imputation if it is otherwise conveyed by the balance of the articles, including the balance of the Kenny article itself.
140 However, the Kenny article is, in my opinion, important in confirming what the ordinary reasonable reader would have understood on reading the SMH articles. Such readers would have understood the Kenny article as pointing up the issue of principle raised by the articles. That was whether a form of political fundraising, acknowledged in the Kenny article to be used on both sides of politics, which involves payment of substantial sums in anticipation of a form of regular access to a Minister and which is otherwise not generally available in that form, undermines confidence in the governmental process. The ordinary reasonable reader would, taking this article together with the Nicholls article, have understood that this is what was being conveyed.
141 In many respects, much of Mr Hockey's claim was based on a simple syllogism: politicians who can be bought are corrupt; the statement that Mr Hockey was for sale meant that he could be bought; therefore the SMH articles conveyed that Mr Hockey was corrupt. It is not axiomatic, in my opinion, that ordinary reasonable readers would have accepted that the first part of the syllogism (many are likely to have wanted to know the sense in which politicians can be bought). However, even if they did, I consider that such readers, reading the SMH articles as a whole and in context, would not have understood the SMH to be conveying the second element of the syllogism, because they would have understood that what was being conveyed was not that Mr Hockey, let alone his judgment or discretion, could be bought but that Mr Hockey and the NSF were using a method of political fundraising made attractive to donors by the prospect of regular access to Mr Hockey.
142 Put slightly differently, the ordinary reasonable reader would have understood on reading the articles as a whole that the SMH was reporting on a method by which access to Mr Hockey in his important role as Treasurer could be obtained by the payment of significant sums, but not that Mr Hockey himself, or his judgment or discretion, could be bought. This was so despite the "strong and eye-catching" headline "Treasurer for Sale".
143 As noted, Mr Hockey's pleaded case also relies on the Hartcher article. Ultimately, that did not feature prominently in the submissions made on his behalf. I do not consider that it has the effect, by itself or in combination, of causing the other parts of the SMH to convey the defamatory imputations of which Mr Hockey complained. Its location alongside the Nicholls article and the Kenny article would be regarded by ordinary reasonable readers as no more than a matter of publisher's convenience. That is to say, the grouping together of articles dealing with common subject matters or common themes. At its highest, it may have illustrated how the use of forums such as the NSF can give rise to undesirable practices.
144 Accordingly, in my opinion, Mr Hockey's claims in respect of the printed SMH articles on 5 May 2014 fail.
145 I add that I would have reached this same conclusion even without regard to the Kenny article.