Andrew Bragg (NSW, Liberal Party) Share this | Hansard source

I rise to make some remarks about a defamation matter that I am dealing with in my role as a senator. On 18 May I received a letter and a concerns notice from Rebecca Sandford, special counsel for HWL Ebsworth Lawyers in Adelaide, which was marked 'urgent and confidential' and sent on behalf of The New Daily Pty Ltd. The letter alleges that I have made 'grossly defamatory remarks', and the lawyers said that they expected the awarding of 'substantial damages and costs'. Their claim effectively is that I have defamed The New Daily Pty Ltd by penning an article in the Australian in March entitled 'Lucky the ABC finally came to its senses'. This is quite a good article, and I commend this article to the Senate and anyone else who wants to read it. In that article, I said:

The New Daily is a superannuation sinkhole where $12 million of workers' savings have disappeared. It is a loss-making business which calls into question the legal basis of the entity given super funds have a fiduciary responsibility.

This article was written following the cancellation of a deal between the Australian Broadcasting Corporation and The New Daily, which is frankly a deal that the ABC should never have entertained, given its status as the national broadcaster. Why on earth the ABC would be in bed with lobbyists shows, I think, a significant cultural problem inside the organisation.

Having had some experience of legal matters in my life, I was surprised to discover that it was in fact possible to defame a company. I thought this was something that generally could only be done to individuals. But, no, there are some arrangements in the model defamation code, and in the state of New South Wales there are corporations, which are excluded corporations, which can bring a defamation action for two reasons: a corporation is an excluded corporation if the objects for which it is formed do not include obtaining financial gain for its members, or it has fewer than 10 employees. It would appear that this New Daily organisation significantly fails both of the tests.

On the first test, which goes to the question of it not being established for financial gain, I received a letter on 20 August 2021 from the Australian Prudential Regulation Authority, or APRA, which is the prudential regulator that looks after superannuation funds, governance and risk management. APRA explained to me that there were six superannuation funds that provided capital to The New Daily when it was founded between 2013 and 2016. Five of these funds treated it as an investment. One treated it as an expense. 'As we have previously advised,' APRA say, 'New Daily is no longer owned directly by the super funds. It is now owned by Industry Super Holdings.' Industry Super Holdings, according to APRA, is owned by 20 superannuation funds, 'all of which'—and I'm quoting APRA directly here—'treat their holding as an investment'. So if the superannuation funds are treating their money in Industry Super Holdings and The New Daily as an investment then it cannot be, by definition, an organisation set up for non-financial purposes, because that's not how the superannuation laws work in this country.

On the second test—whether or not it could satisfy this under-10-person test—I think it is rather hilarious, when you consider that the parent company here, the Industry Super Holdings company, has a billion-dollar balance sheet. I would imagine that a billion-dollar company employs more than 10 people. On that basis, we have to assume that the New Daily is not capable of suing for defamation, and this letter that I have received from Ms Sandford of HWL Ebsworth in Adelaide is certainly a strange event.