PART 11: DEFAMATION

Many people are afraid to speak openly to or about their Local Government at Council or Committee meetings or in public, because they fear being sued for defamation or prosecuted in the criminal jurisdiction for "speaking adversely" about a Councillor, officer or their actions or inactions.

BUT:

The Defamation Act 2005 prescribes:

Section 3. Objects of Act
The objects of this Act are —
(a) to enact provisions to promote uniform laws of defamation in Australia;
(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance;

Section 9. Certain corporations do not have cause of action for defamation

(1) A corporation has no cause of action for defamation in relation to the publication of defamatory matter about the corporation unless it was an excluded corporation at the time of the publication.

(2)  A corporation is an excluded corporation if —
 the corporation is not a public body.

(6) In this section —
“corporation” includes any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body;
“public body” means a local government body or other governmental or public authority constituted by or under a  law of any country.

In other words, pursuant to the Defamation Act 2005, a local government, not being an excluded corporation, has no cause of action for defamation in relation to the publication of defamatory matter about the corporation.

Compare the above statute law with the opening address from the person presiding (the Mayor) at the Annual Meeting of Electors 03 December 2015:

"I would hope that I don’t have occasion to remind anyone during the meeting that none of us here enjoy any privilege or protection from laws relating to defamation, as we will of course, all be focusing on the issues. Prefacing remarks with the words “Without Prejudice” as sometimes happens at this type of meeting does not confer any protection to the speaker."

Compare also with relevant sections of the Local Government Act 1995:

Section 9.56: Certain persons protected from liability for wrongdoing

(1) A person who is —
(a) a member of the council, or of a committee of the council, of a local government;
(b) an employee of a local government; or
(c) a person appointed or engaged by a local government to perform functions of a prescribed office or functions of a prescribed class,
is a protected person for the purposes of this section.

(2) An action in tort does not lie against a protected person for anything that the person has, in good faith, done in the performance or purported performance of a function under this Act or under any other written law.

(3) The protection given by this section applies even though the thing done in the performance or purported performance of a function under this Act or under any other written law may have been capable of being done whether or not this Act or that law had been enacted.

The Defamation Act 2005 further prescribes at S29.  Defences of fair report of proceedings of public concern

 (1)  It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

(3)  A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

(4)  In this section —
proceedings of public concern means —

(g)  any proceedings in public of a local government body of any Australian jurisdiction;

This shows the statement by the person presiding is misleading and designed to intimidate, diminish and distract from an Elector's rights to speak freely and factually about the local government, which is a “corporation” as defined in the Defamation Act.

The fact is that Councillors and staff, being "public officers", are protected from the laws of defamation when they are acting for the local government. This would include their dual roles as Councillors/employees and Electors in Elector meetings.

Furthermore, Clause 8.4 of Local Law`Standing Orders imposes a separate stream defining unlawful comment, prosecutable by summons in the criminal jurisdiction.

In summary this is yet another example of a local government's deceptive attempts to set aside the Rule of Law and become above it.

"People crushed by law, have no hopes but from power. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose, will always be dangerous." Edmund Burke (1729 – 1797)

The WA Criminal Code Part II

Offences against public order Chapter VII : Sedition

S45. Acts excepted from s. 44

It is lawful for any person —

(a) To endeavour in good faith to show that the Sovereign has been mistaken in any of Her counsels; or

(b) To point out in good faith errors or defects in the Government or Constitution of the United Kingdom, or of the Commonwealth of Australia, or of Western Australia as by law established, or in legislation, or in the administration of justice, with a view to the reformation of such errors or defects; or

(c) To excite in good faith Her Majesty’s subjects to attempt to procure by lawful means the alteration of any matter in the State as by law established; or

(d) To point out in good faith in order to their removal any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of Her Majesty’s subjects.

S5. No civil action for lawful acts; saving

When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof.

Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect of any act or

omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof.

Consequently any local law which purports to prohibit any lawful act prescribed by the WA Criminal Code to be lawful is, of itself, unlawful.

The light shines in the darkness, and the darkness can never extinguish it. John 1:5 NLT