Posted on August 8, 2017 by Anna Sinclair

Defamatory statements in political discussion – when are they protected?

A recent NSW Supreme Court case concerning defamatory statements made against a local councillor provides useful guidance on when the defence of “honest opinion and fair comment” will be made out. This decision assists councillors and other politicians in understanding when the law will and will not protect persons who make defamatory statements about them.


In Milne v Ell [2017] NSWSC 555, the defendant, Mr Ell had originally brought defamation proceedings against the plaintiff, Councillor Milne (a councillor on Tweed Shire Council).  Mr Ell was awarded $15,000 in damages plus costs. We previously reported on this case here.

Shortly after the court ruling, Mr Ell spoke with a journalist from the Gold Coast Bulletin (‘Bulletin‘) and made comments that Councillor Milne was not a “fit and proper person to be a councillor” (‘Statement‘) and that he “hoped the speculations that the payments would bankrupt her were true, so that she would not be able to retain her place as a councillor”.

Councillor Milne brought defamation proceedings against Mr Ell arising from the Statement and its publication in the Bulletin.

Rothman J found that the Statement was capable of giving rise to a defamatory imputation, namely that Councillor Milne was “not a fit and proper person”.

The defence of honest opinion or fair comment

Mr Ell then sought to rely on the defence of honest opinion (s31 of the Defamation Act 2005) or fair comment on matters of public interest at common law.

Rothman J stated that to rely on this defence a person must satisfy the following requirements:

  1. the words must be comment or the expression of opinion as distinct from a statement of fact or assertion of fact,
  2. the comment must be made or the opinion expressed on a matter of public interest, and
  3. the factual basis for the comment or opinion must be identified in the published matter or otherwise be notorious.

Mr Ell alleged that the Statement was a comment on the fact that Councillor Milne “undertook proceedings which were unsuccessful” against him, and further that Councillor Milne, having been found to have defamed him, was not a fit and proper person to be a councillor.

After analysing the context in which the Statement was made, Rothman J rejected this, finding that the Statement was a statement of fact rather than comment or opinion and further, it was not based on other facts cited in the publication. Accordingly, Mr Ell had not established the defence.

Notwithstanding his finding, Rothman J provided a useful review of case law and commentary regarding the requirement that the comment made or opinion expressed must be on a “matter of public interest”.

The defamatory statement has to be about an act or omission of some person or institution on a matter of public interest, which may include the administration of justice or the management of public institutions. Importantly, the criticism must not attack the individual, but only the work of the individual and may include the policy of the government or the action of a member of Parliament.

In this case Rothman J found that whether the Mayor or a councillor of a local council is or is not a fit and proper person to hold that position is a matter of public interest as it is “a matter that affects all of the electorate in the Council concerned”.


The defence of honest opinion and fair comment is a potentially broad defence that can protect persons who make statements about the work of public officials, including local councillors and members of parliament, which have a defamatory imputation.

Whether a person will be able to rely on this defence depends on the context in which that person’s statement is made and whether it can properly be considered to be a comment or opinion based on facts that are either published with the statement or commonly known. 

If Mr Ell had instead stated to the journalist that based on Councillor Milne’s unsuccessful action against him and given that she was found to have defamed him, he thought she was not a fit and proper person to be a councillor, then he may have been able to rely on the defence.

The full judgment can be read here.

Should you wish to discuss this case, please contact Anna Sinclair, Senior Associate, on 8235 9713 or by email, at