Andrew Bragg (NSW, Liberal Party) Share this | Link to 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.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Trying to intimidate you.

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

I think that's right—I take the interjection. Because I'm a proper person, of course my lawyers responded in the usual way and said, 'Please show cause.' And so far: crickets, nothing. So an organisation wanted to commence a legal proceeding with me; my lawyers did the right thing and engaged properly, providing back information; and we have heard nothing—nothing since May.

So you have to think: why would an organisation do this? I think there are probably three reasons. Firstly, they want to silence a critic; secondly, they wanted to stop anyone else raising these issues; and, thirdly, perhaps they like the deal they've already got so much that they want to put more money into this scheme, more money into this propaganda outfit—more money for lobbying. According to ASIC records, they've already spent $30 million on this New Daily product. Thirty million dollars of workers' money has already been wasted. We have to assume they want to keep on doing this. As the good Senator Scarr just interjected, it is a classic case of trying to secure silence by bullying, and these tactics are totally out of step with a modern society.

The reason that I'm making these comments about this particular scheme is that I think it's very important for the Senate to reflect upon them. The superannuation guarantee is a government program established under law for various purposes. If, as a senator, I were precluded from making statements about a government program, what sort of democracy would we have? I think it's a very important line in the sand here. We can't have a situation where elected officials can't opine about the progress, capacity and success of government programs. It's very important that people are able to raise matters in the public interest, and I would say it is a matter of great public interest that an organisation has been set up, with $30 million of workers' capital, to smear and, through its websites and various parties, engage in all sorts of underhanded behaviour against people it doesn't like. That's not what super is for.

In this chamber there are many different views about superannuation. Some I agree with; others I don't. I think most fair-minded people would say that it's a good idea, that it's an idea that should be made to work, and that these propaganda outfits who are pursuing people through the use of workers' capital really should hang their heads in shame, especially when they're seeking to silence elected officials. If this defamation action were allowed to proceed it would have a chilling effect on the capacity of members of parliament to make statements about government programs. It should not be allowed to stand, and that's why I will not be bullied by these particular organisations and people.

I would say, having conducted an ASIC search of these two companies—because you can't find out who's actually behind these organisations through the usual way—that they should seriously consider their positions and seriously consider how they can justify the expense of what these lawyers have been required to undertake. The directors of Industry Super Holdings are just three people—Michael Migro, Linda Rubinstein and Gregory Combet—and then at the New Daily there are nine people: Gerard Noonan, Glenn Thompson, Tessa Herd-Court, Christopher Walton, Catherine Smith, William Watson, Catherine Bowtell, Brad Crofts and Susie Allison. My message to these 12 people is: who on earth is paying for these legal expenses? Who is paying for these legal expenses, and how can you justify that?

The good news is that this parliament has recently enacted a law which requires the super funds to act in the best financial interests of members. I don't see any possible justification for the ongoing expenditure of the New Daily for legal expenses in trying to smear, close down or collapse public debate about government programs. I don't think your positions are tenable. I look forward to receiving your proper responses to my lawyer's letters, given you have sought to engage this matter. It would be a great shame for our democracy if people like this could lurk in the shadows, set up boondoggle propaganda outfits like the New Daily, and undermine and silence legitimate public debate about a perfectly good idea. Superannuation is a good idea, but it is not working particularly well, and one of the reasons it's not working well is that people have treated the money like it is their own. It is not your money; it is the money that belongs to the workers. I thank the Senate very much for its time.