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Ahangar, Prof. Dr. Mohd Altaf Hussain --- "Broadening horizons of qualified privilege: desirability of one law for all" [2006] NZYbkNZJur 9; (2006) 9 Yearbook of New Zealand Jurisprudence 140

Last Updated: 19 April 2015

Broadening Horizons of Qualified Privilege:

Desirability of One Law For All

Prof. Dr. Mohd Altaf Hussain Ahangar*

i. INTRODUCTION

Qualified privilege as a defence to defamation action has its roots in the common law. However, the scope of this defence has been amplified in recent years through judicial activism and legislative measures.

This paper endeavors to highlight the common law rules in relation to qualified privilege and its application in England and Malaysia. A detailed discussion will follow with respect to the broadening horizons of this defence in England, Australia, New Zealand and Malaysia. The supplementation of common law principles by statutory provisions in these countries will then be considered. In the end, the paper will conclude that in a secular matter like defamation, there should be no place for diverse laws in different countries and the time is opportune to have one law for all in the contemporary global village.

ii. QUALIFIED PRIVILEGE AT COMMON LAW

Sometimes it is necessary for a person to make statements in order to discharge one’s legal or moral obligations or to protect one’s own legitimate interests.¹

On such occasions, common law confers a limited form of immunity from legal action on the maker of a defamatory statement. The immunity or defence so created is known as qualified privilege. This defence attaches more importance to the occasion or the circumstances of the publication than to the defamatory statement itself and is available despite the fact that the statement made on such occasion or in such circumstances turns out to be false.² However, the defendant should not be motivated by malice and must honestly believe in the truth of the defamatory statement.³ With regard to privileged occasion, Lord Atkinson in Adam v Ward⁴ stated:

* Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.

1 Horrocks v Lowe [1975] AC 135, 149.

2 Ibid.

3 Ibid.

4 [1917] AC 309, 334.

A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential.

Thus, the duty in question need not be legal but may be social or moral.⁵

Likewise the interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or insubstantial. So long as interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule.⁶

It is necessary that the interest or duty in question must actually exist; it is generally not enough that defendant honestly believes, even on reasonable grounds, in its existence.⁷ Reciprocity of duty or interest between the maker and recipient of the statement is a pre-requisite. If either is lacking, then the occasion on which the communication is made is not privileged.⁸

The above quoted requirements for a defence of qualified privilege have been applied in infinite cases not only in England but in most countries of the world. In Malaysia, we have a long line of cases in which this defence has been applied. In Jenni Ibrahim⁹ the defendant was removed from the post of managing director of a medical centre and was replaced by the plaintiff. The defendant made an allegation of misappropriation of money at the medical centre against the plaintiff and wrote about it to Chief Police Officer. He made the same allegation in a letter to the Secretary of Medical Center and sent copies to the Director, Social Welfare and Registrar, Societies of Malaysia. The plaintiff filed suit for defamation and claimed damages for embarrassment, distress and humiliation. Rejecting the defence of qualified privilege, Ajaib Singh J observed:

There was no common and corresponding duty or interest between the defendant and the several persons who received and read the libelous statements.¹⁰

Recently, the High Court of Melaka had an opportunity to deal with the qualified privilege defence in Abu Samah.¹¹ In this case, in June 1996, the defendant appointed the plaintiff to carry out demolition and construction work in the plaintiff’s house. On August 7, 1996, the defendant was informed

5 Staurt v Bell [1890] UKLawRpKQB 138; [1891] 2 QB 341, 350.

6 Howe v Lees [1910] HCA 67; (1910) 11 CLR 361, 377.

7 Beech v Freeson [1972] 1 QB 14, 24-25.

8 Watt v Longsdon [1930] 1 KB 130.

9 Dr. Jenni Ibrahim v S. Pakianathan [1986] 2MLJ 154.

10 Ibid, 155; See also, Chong Siew Chiang v Chua Ching Geh [1992] 4 CLJ 1839: Doree

Industries (M) Sdn. Bhd. v Sri Ram & Co [2000] 1 MLJ 532.

11 Abu Samah bin Omar v Zainal bin Montal [2004] 5 MLJ 377.

by his wife that some money and jewelry in the house were found missing. On the same date, the defendant lodged police report suspecting one of the plaintiff’s three workers. The plaintiff sued the defendant for libel on the basis of that police report. The trial court allowed the plaintiff’s claim and observed that ‘in making the police report, the defendant could not rely on the defence of qualified privilege, although there was no malice on the part of the defendant.’ On appeal, the court allowed the defence of qualified privilege. Low Hop Bing J observed:

The learned magistrate has erred in failing to apply the defense of qualified privilege, as the plaintiff was unable to adduce any evidence of malice on the part of the defendant.¹²

The learned judge rightly relied on following observation of KN Segara in

Hoe Thean Sun:¹³

The law clearly recognized that all statements made in police report are statements made on a privileged occasion, and the privilege is qualified, though not absolute...The primary purpose of police report is to set in motion the investigation of an offence and bring to justice the offender and perpetrators, if any, at the conclusion of the investigation by the appropriate authorities.¹⁴

The other recent case is Puneet Kumar.¹⁵ In this case the plaintiff brought an action on the basis that the defendant while wrongly terminating his services as a visiting consultant used certain words in the terminating letter which were defamatory to his status as a specialist. The defendant, as executive director, had sent copies of the termination letter to the chairman, chief executive, medical director and administrator of the relevant hospital. The defendant did not dispute the authenticity of the disputed letter, but argued that the termination was justified as the plaintiff’s actions during an operation were a total failure of teamwork, and pleaded the defence of qualified privilege. Allowing the defence, Kamalanathan Ratnam J, while referring to, mostly local, various cases, adopted the following observation of Lord Diplock in Horrocks:¹⁶

Indifference to the truth of what a person publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true, the freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal

12 Ibid, 383.

13 Hoe Thean Sun v Lim Tee Keng [1999] 3 MLJ 138.

14 Ibid, 142.

15 Puneet Kumar v Medical Centre Johore Sdn bhd. [2004] 5 MLJ 573.

16 Horrocks, supra n 1.

or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life, it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of, its probative value. In greater or lesser degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognize the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is a positive belief that the conclusions they have reached are true. The law demands no more.¹⁷

iii. THE BROADENING HORIZONS

At common law, qualified privilege was intended to serve as a defence for a person in relation to communication to a limited number of persons, i.e., persons who had a social, legal or moral duty to receive the communication. In recent years, this defence has been extended even to communications to a nation or to the whole world through mass media. The four landmark cases in four different jurisdictions deserve a detailed discussion. They are Lange v ABC¹⁸ in Australia, Lange v Atkinson¹⁹ in New Zealand, Reynolds²⁰ in England and Dato Seri Anwar Ibrahim²¹ in Malaysia.

In the Australian case Lange v ABC²², David Lange sued Australian Broadcasting Company in respect of a broadcast that allegedly cast aspersions on plaintiff’s conduct, performance and fitness for office as a member of New Zealand’s Parliament and as its Prime Minister. The defence plea included common law qualified privilege. The High Court of Australia allowed an expanded defence of qualified privilege in relation to political discussion. All the seven judges in one voice declared:

Each member of Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by

17 Ibid, 150.

18 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 145 ALR 96.

19 Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385.

20 Reynolds v Times Newspapers Ltd. [1999] UKHL 45; [1999] 4 All ER 609.

21 Dato Seri Anwar Ibrahim v Dato Seri Dr Mahathir Bin Mohamad [1999] 4 MLJ 58.

22 Lange v ABC, supra n 18.

discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege.²³

One fact that is obvious from the observation is that the common convenience and welfare of modern society²⁴ demands the broadening of the horizons of the defence of qualified privilege. In this regard the court drew the distinction between defamatory statements regarding political or governmental matters which were published to a limited number of recipients and those which were communicated to a large audience. In first type of defamation, once it is established that the matter complained of has the necessary political or governmental flavor, the publication is made an occasion of qualified privilege. However, in second type of defamation, it is necessary for the defendant to prove that his or her conduct in publishing the material complained of was reasonable.²⁵ With regard to the malice requirement, the court opined that the concept of malice was narrowed by eliminating from it those matters pertaining to defendant’s mental state which he or she must establish under the rubric of reasonableness.²⁶

Prior to the Australian Lange v ABC case, the High Court of New Zealand had dealt with the issue of unlimited communication in Lange v Atkinson.²⁷ This case arose from a defamation action by former New Zealand Prime Minister David Lange against the writer and publisher of an article in the New Zealand magazine North and South which was critical of the plaintiff’s performance as a politician. Elais J allowed the defence and observed that ‘whilst a “stand- alone” defence of political expression was unknown to the law of New Zealand, the alleged facts upon which it was claimed could give rise to an occasion of qualified privilege.²⁸ On appeal, the Court of Appeal did not disturb Elias J’s judgment. While rejecting the reasonableness requirement propounded in the Australian Lange v ABC, it made following observations:

(1) The defence of qualified privilege may be available in respect of

statement which is published generally.

(2) The nature of New Zealand’s democracy means that the wider polity may have a proper interest in respect of generally published statements which directly concern the functioning of representative and

23 Ibid, 115.

24 Ibid, 116.

25 Ibid, 116 -117.

26 Ibid, 117.

27 Lange v Atkinson, supra n 19.

28 Ibid, 48.

responsible government, including statements about the performance or possible future performance of specific individuals in elected public office.

(3) In particular, a proper interest does not exist in respect of statements made about the actions and qualities of those currently or formerly elected to Parliament and those with immediate aspirations to such office, so far as those actions and qualities directly affect or affected their capacity (including their personal ability and willingness) to meet their public responsibilities.

(4) The determination of the matters which bear on that capacity will depend on a consideration of what is properly a matter of public concern rather than of private concern.

(5) The width of the identified public concern justifies the extent of the

publication.²⁹

New dimensions were added to the defence of qualified privilege in England by Reynolds.³⁰ In this case, the plaintiff was a former Taoiseach (Prime Minister) of the Irish Republic who sued the Sunday Times in respect of an alleged libel in its British mainland edition, concerning the circumstances of his resignation as leader of the Fianna Fail/Labour Coalition in 1994. He alleged that the article meant that he had allegedly misled the Dail and his cabinet colleagues over the handling of a controversial extradition case by the then Attorney General, whom he wished to appoint the President of High Court. At the Court of First Iinstance, and in the Court of Appeal, the publication of the article was held not privileged. Further, both the courts rejected any wide qualified privilege at common law for political speech. The Court of Appeal,³¹ however, held that, in addition to the duty and interest test, a circumstantial test had to be satisfied: ‘where the nature, status and source of the material and the circumstances of the publication are such that the publication should be in the public interest, it would be protected in the absence of proof of malice.’³² In response to defendant’s appeal, the House of Lords by majority rejected the plea of privilege because the article had omitted all reference to what the claimant had said in the Dail by way of explanation.³³

It rejected the ‘circumstantial test’ propounded by the Court of Appeal.³⁴ The starting point for Lord Nicholas was ‘freedom of expression’. According to his Lordship, freedom to disseminate and to receive information on political

29 Ibid, 61.

30 Reynolds v Times Newspapers Ltd (1999) supra n 20.

31 Reynolds v Times Newspaper Ltd [1998] EWCA Civ 1172; [1998] 3 WLR 862 at 899.

32 Reynolds v Times Newspapers Ltd (1999) supra n 20 at p 627.

33 Ibid, 619.

34 Ibid, 621-622.

matters was essential to the proper functioning of the system of parliamentary democracy. The media played an important role in this process. Thus, without a free press, freedom of expression would be hollow concept. However, the protection of reputation was also an important public good.³⁵ According to his Lordship, the crux of the appeal therefore lay in identifying the restrictions which are fairly and reasonably necessary in a democracy for the protection of reputation. Consequently, Lord Nicholas set out a non-exhaustive list of circumstances which would be relevant to the question of whether the media should be regarded as having a duty to convey information and the public a corresponding interest in receiving it. However, he mentioned that the weight to be given to these and any other relevant factors will vary from case to case.³⁶

The outlined ten factors were:

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject- matter is a matter of public concern.

3. The source of information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the claimant will not always be necessary.

8. Whether the article contained the gist of the claimant’s side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.³⁷

35 Ibid, 622.

36 Ibid, 626.

37 Ibid.

It is in the backdrop of the above three cases that, in Malaysia, the defence of qualified privilege in relation to communication to the public at large was in issue in the case of Dato Seri Anwar Ibrahim.³⁸ In this case, the plaintiff, the former Deputy Prime Minister brought an action in defamation against the defendant who at the material time was the Prime Minister and the Home Minister of Malaysia. The plaintiff, who was dismissed from various governmental and political positions, claimed that on 22 August

1998 the defendant falsely and maliciously spoke and published to national and international journalists about the plaintiff and accused the plaintiff of homosexuality. The defendant argued, inter alia, the defence of qualified privilege in view of an admission of sodomy by two persons earlier before the court. The defendant further contended that his statement was based on matters that were already of public knowledge and on information related to him by police. He argued that as Prime Minister of the country, he had a duty to the public who elected him and to his party to explain reasons for the plaintiff’s dismissal from various positions. The defendant further contended that he was badgered by various sources for explanations on the plaintiff’s dismissal from his various offices and that the alleged defamatory response he made was a direct response to a question posed by a member of the press at a press conference.³⁹

Allowing the defence of qualified privilege, the High Court, while referring to decisions in various cases from different jurisdictions, focused on three tests outlined by the Court of Appeal in Reynolds. Kamalanathan Ratlam J observed:

The defendant was duty bound to have disclosed the information concerning his ex-deputy. As the chief executive of the government, the defendant was under a legal, moral and social duty to inform the nation of the matters concerning the plaintiff....The defendant’s words were uttered with a view to repelling the charges [charges included of a political conspiracy of the highest level] made by the plaintiff, they were made bona fide and were relevant to the accusations made by the plaintiff. The defendant’s words were spoken on an occasion of qualified privilege. The defendant spoke of the words with a mind devoid of malice and has also satisfied the tests set out in Reynolds v Times Newspapers Ltd [1998] EWCA Civ 1172; [1998] 3 WLR 862 for assessing whether the defence of qualified privilege applies.⁴⁰

Further, the court was highly critical of plaintiff’s case. Treating it as an abuse of judicial process, the learned judge further observed:

38 Dato Seri Anwar Ibrahim v Dato Seri Dr Mahathir Bin Mohamad, supra n 21.

39 Ibid, 64-68.

40 Ibid, 69-72. The plaintiff ’s two appeals to Court of Appeal and Federal Court were unsuccessful. See [2001] 1 MLJ 305 and [2001] 2 MLJ 65.

The ‘primus inter pares’ of the country and his cabinet colleagues must be protected from frivolous, vexatious and abusive suits. Otherwise, rather than running the country towards achieving peace and prosperity for its citizens, the officials of the government will forever be looking over their shoulders for fear of being dragged to court with an unwanted but heralded suit. Whilst no one is above the law, yet the court must be ever vigilant, never indolent, ever watchful, never fearful of its duty to check on the conspiratorial machinations of parties or persons motivated with the express desire of dragging top officials who run the country, to court with intent to cause nothing more than embarrassment to such officials. The plaintiff’s claim was one that was frivolous, vexatious and an abuse of the process of the court and should therefore be struck out.⁴¹

After this judgment came House of Lords’ observation in Reynolds. We already know that the House of Lords rejected the three test formula laid down by the Court of Appeal in this case. Even if the House of Lords decision in Reynolds had been referred to in Dato Seri Anwar Ibrahim, the outcome could not have been different. The insistence of the House of Lords to go back to the traditional twofold test of duty and interest would not have mattered because the devised test was sufficiently flexible to embrace, depending on the occasion and the particular circumstances, a qualified privilege in respect of political speech published at large. The essential question that had to be asked in any case was whether the public was entitled to know the particular information.

This required consideration of many matters including, but not limited to, the nature, source, tone and character of the report, any steps taken to verify the information, the urgency of the matter, whether the claimant had been given the chance to respond, and the timing of the publication. One can hardly be critical of judgment in Dato Seri Anwar Ibrahim because the judgment satifies all the criteria outlined in Reynolds. However, one critic⁴² of the judgment argued that the defendant had no legal duty to communicate to journalists and so there was no question of relying on the defence of qualified privilege as laid down in Reynolds. The critic, however, does ignore two facts. Firstly, Reynolds does not speak about a legal duty only but also of social and moral duties. Secondly, legal matters and political matters are not same. Both have to be tackled on their own terms. The plaintiff in this case was not an ordinary person. He had immense political influence. Simply dismissing him from the post of Deputy Prime Minister would not have been acceptable to the common man of this country. So, all the communications made by the defendant need to be viewed also from the political dimensions involved in this case.

41 Ibid, 72.

42 See Abdul Aziz Bari, ‘Dato Seri Anwar Ibrahim v Dato Dr Seri Mahathir bin Mohamad:

The Constitutional Dimensions’ [1999] 4 MLJ cxc, p cxciii.

iv. DIVERSE STATUTORY DEFENCES OF QUALIFIED PRIVILEGE

From the above discussion it is evident that the common law defence of qualified privilege has been immeasurably broadened in relation to political discussions and media publications. But there is a need to realize that defamation is a secular issue devoid overall of religious, cultural, linguistic and other considerations. It is a human issue. So by now there should be a uniform global law on this issue, which includes the defence of qualified privilege. Unfortunately it is not so. Most countries have legislation, which differs in substance but is the same in spirit. In addition to the common law principles discussed above, in Malaysia, we have Section 12 of Defamation Act 1957 which extends the defence of qualified privilege to the following publications in a newspaper:

A fair and accurate report of proceedings –

1. of the legislature of any part of the Commonwealth other than in

Malaysia;

2. of an international organization of which Malaysia or the Government therefore is a member;

3. of an international conference to which the Government sends a representative;

4. before any court exercising jurisdiction throughout any part of the Commonwealth outside Malaysia under any written law in force in Malaysia or under any Act of the United Kingdom Parliament; and

5. of a body or person appointed to hold public enquiry in the Government of Malaysia or any State thereof or by the legislature of any part of the Commonwealth outside Malaysia.

6. a fair and accurate copy of or extract from any register kept in pursuance of any written law in force in Malaysia or document which is open to inspection by the public or which members of the public are entitled on payment of a fee to a copy.

7. a notice, advertisement or report issued or published by or on the authority of any court within Malaysia or any Judge or officer of such court or by any public officer or receiver or trustee acting in accordance with the requirements of any written law.

This set of publications is at variance with publications recognized under English Defamation Act 1996. Under this Act, the statements protected by the defence of qualified privilege have been divided into two groups: statements

having qualified privilege without explanation or contradiction, and statements privileged subject to explanation or contradiction. The main peculiarity of the English statute is that it accords protection to a number of publications in newspaper at global levels rather than confining it to Commonwealth countries.⁴³

Much diversity is visible in Australia, where all the eight states have their own defamation regime. However, in order to ensure brevity and relevance, reference will be made only to the statutes of Queensland, Tasmania and New South Wales. Queensland and Tasmania are not governed by common law in relation to qualified privilege but by two codes; the Defamation Act 1889 and the Defamation Act 1957 respectively. In relation to qualified privilege both codes are in substance identical. Section 16(1) of both codes provides eight situations under which the defence of qualified privilege can be taken.

It is lawful excuse for the publication of defamatory matter if the publication is made in good faith-

(a) in the course of a censure passed by a person on the conduct of another person over whom he has lawful authority, being conduct in matters to which that lawful authority related;

(b) for the purpose of seeking remedy of redress for a private wrong or grievance or a public wrong or grievance from a person who has, or is reasonably believed by the person who makes the publication to have, authority over the person defamed with respect to the subject matter of the wrong or grievance;

(c) for the protection of the interests of the person who makes the publication, or of some other person, or for the public good;

(d) in answer to an inquiry made of the person who makes the publication in the relation to a subject as to which the person by whom or on whose behalf the inquiry is made has, or is reasonably believed by the person who makes the publication to have, an interest in knowing the truth;

(e) for the purpose of giving information to the person to whom it is made with respect to a subject as to which that person has, or is reasonably believed by the person who makes the publication to have, such an interest in knowing the truth as to make the last-mentioned person’s conduct in making the publication reasonable in the circumstances;

(f) on the invitation or challenge of the person defamed;

43 See Sec 15 & Schedule 1 to the Defamation Act 1996.

(g) in order to answer or refute some other defamatory matter published by the person defamed concerning the person by whom the publication is made or some other person; or

(h) in the course, or for the purposes, of the discussion of a subject of

public interest the public discussion of which is for public benefit.

However the defence will fail if the plaintiff proves that the defamatory statement was not made in good faith.

The Queensland and Tasmania legislation is different from common law in the following respects:

1. Under s 16 there is no single, universally applicable test for determining the circumstances in which the statutory defence will be available. Rather it is necessary to bring oneself within the precise terms of one or more of its paragraphs.

2. Reciprocity of duty or interest is not an invariable prerequisite for protection - the terms of each paragraph must be individually examined.

3. In paras (b), (d), and (e), proof that the recipient actually possesses the specified authority or interest is unnecessary - a reasonable belief by the publisher in its existence will suffice.

4. Paragraph (h) in particular has no direct common law ancestor.⁴⁴

In comparison the common law defence of qualified privilege remains available in New South Wales. It is, however, supplemented by ss 20-22 of Defamation Act 1974 which provide law for multiple publications, mistaken character of recipient and reasonable publication of information to interested persons.

v. CONCLUSION

One can see that the principles of common law in relation to qualified privilege have not remained lifeless in most countries of the world. Rather the courts have in recent years broadened the horizons of these principles in relation to individual communications, political discussions and media publications. What is, however, worrying is the presence of diverse statutory provisions even in one country in relation to defamation, particularly in relation to qualified privilege. Confusion and uncertainty around protected speech is further compounded, impeding the social goods both defamation and qualified privilege are supposed to further, when in a country like Australia the eight

44 Michael Gilooly, The Law of Defamation in Australia and New Zealand (1999) 284.

states have preferred their own regime of laws on defamation, all at variance with each other. The variance has become such an irritation that the Australian Attorney General Ruddock⁴⁵ has recently directed states to adopt a uniform law on defamation. He has even threatened imposing his own version of law on defamation although it is doubtful whether he has constitutional power to do so. Personally I agree with Ruddock because we all belong to global village, which values many of the same human and social goods. The laws governing us should be also one and the same in secular matters.

45 R u d d o c k ’s D r a f t . F o r d e t a i l s , s e e C o m m o n w e a l t h A t t o r n e y G e n e r a l ’s P a g e . www.gov.au